Latest 11 Cases This Week: McClurg v. Birmingham Realty Company (Ala.), Dos Vientos v. CalAtlantic Group, Inc. (Cal. Ct. App.), Griffin v. LaSalle ...

Dead Letter Office: What’s Left of the Impeachment Power After Trump’s Acquittal

DEAN FALVY

Dean Falvy, a lecturer at the University of Washington School of Law in Seattle, discusses what happens now, after Senate Republicans voted to acquit President Trump. Falvy predicts that (1) President Trump will be emboldened to commit further abuses of power, (2) future presidents will be less constrained by fear of impeachment, and (3) impeachment may become more routine as political practice and significantly less effective as a constitutional remedy.

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McClurg v. Birmingham Realty Company

Court: Supreme Court of Alabama

Docket: 1180635

Opinion Date: January 31, 2020

Judge: Tom Parker

Areas of Law: Civil Procedure, Personal Injury, Real Estate & Property Law

Rose McClurg sued Birmingham Realty Company ("BRC") based on injuries she sustained when she fell in the parking lot of a shopping center owned by BRC. The circuit court entered a summary judgment in favor of BRC, and McClurg appealed. Because there was a genuine issue of material fact as to whether the hole in which McClurg stepped was an open and obvious danger, the Alabama Supreme Court reversed summary judgement.

Dos Vientos v. CalAtlantic Group, Inc.

Court: California Courts of Appeal

Docket: B291731(Second Appellate District)

Opinion Date: February 6, 2020

Judge: Arthur Gilbert

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

After the condominium association sued the developer alleging construction defects, the association began arbitration without obtaining a vote of its members. However, the association's governing documents required arbitration of such disputes and a vote of at least 51 percent of the association's membership prior to beginning arbitration. The members later overwhelmingly voted to pursue the arbitration, but the arbitrator dismissed the arbitration for lack of a membership vote prior to its commencement. The Court of Appeal reversed the trial court's confirmation of the award and entry of judgment for the developer. The court disagreed with Branches Neighborhood Corp. v. CalAtlantic Group, Inc. (2018) 26 Cal.App.5th 743, which held that unless the association has obtained approval by a vote of at least 51 percent of its members prior to beginning arbitration, it has forever forfeited its right to pursue its claims in any forum in spite of an overwhelming ratifying vote. The court stated that this interpretation directly violates the public policy expressed in Code of Civil Procedure section 1286.2, subdivision (a)(4). In this case, the court held that the language of section 7.01B of the covenants, conditions, and restrictions (CC&R's) violates explicit legislative expressions of public policy. Furthermore, the Legislature has also determined that provisions such as section 7.01B are unconscionable. The court stated that Senate Bill No. 326 bars the use of provisions such as section 7.01B as a defense for developers against claims of condominium associations.

Griffin v. LaSalle Bank, N.A.

Court: Florida Supreme Court

Docket: SC18-1132

Opinion Date: February 6, 2020

Judge: Ricky Polston

Areas of Law: Real Estate & Property Law

The Supreme Court quashed the decision of the First District Court of Appeal regarding whether the circuit court presiding over a foreclosure action has continuing jurisdiction to consider a third-party purchaser's motion to recover the value of repairs and improvements made to the property he purchased at a foreclosure sale that was later vacated, holding that the circuit court had continuing jurisdiction to consider the purchaser's motion for damages. The First District concluded that the circuit court did not have jurisdiction to entertain the purchaser's third-party motion for damages after it rendered the final judgment of foreclosure. The Supreme Court disagreed and quashed the First District's decision, holding that the circuit court presiding over the foreclosure action had continuing jurisdiction to consider the purchaser's motion for damages for repairs and improvements he made to the property he purchased at the foreclosure sale that was later vacated.

Brunobuilt, Inc. v. Strata, Inc.

Court: Idaho Supreme Court - Civil

Docket: 46638

Opinion Date: February 5, 2020

Judge: Bevan

Areas of Law: Construction Law, Contracts, Professional Malpractice & Ethics, Real Estate & Property Law

BrunoBuilt, Inc. appealed a district court’s dismissal of its claims against Strata, Inc., Chris Comstock, H. Robert Howard, and Michael Woodworth (collectively, “the Strata Defendants”). BrunoBuilt filed a professional negligence action against the Strata Defendants alleging that when the Strata Defendants rendered engineering services for the Terra Nativa Subdivision they failed to identify a pre-existing landslide and negligently failed to recommend construction of infrastructure that would stabilize and prevent further landslides within the Subdivision. A home BrunoBuilt had contracted to build and the lot on which the dwelling was located were allegedly damaged as a result. The district court dismissed BrunoBuilt’s claims after holding that the parties had entered into an enforceable settlement agreement, or alternatively, that summary judgment was warranted in favor of the Strata Defendants based on the economic loss rule. After review of the situation, the Idaho Supreme Court affirmed the district court judgment because the parties entered into an enforceable settlement agreement.

G4, LLC v. Pearl River County Board of Supervisors

Court: Supreme Court of Mississippi

Citation: 2018-CA-01227-SCT

Opinion Date: February 6, 2020

Judge: James W. Kitchens

Areas of Law: Business Law, Government & Administrative Law, Government Contracts, Landlord - Tenant, Real Estate & Property Law, Tax Law

G4, LLC, entered into a lease in 2009 with the City of Picayune, Mississippi, for land on the grounds of the Picayune Municipal Airport. After the Pearl River County Board of Supervisors assessed ad valorem taxes on the leased land, G4 paid the taxes under protest and petitioned the Board for a refund and for a refund of taxes it had paid on lots in the Tin Hill subdivision. The Board denied G4’s petition, and G4 appealed to the Circuit Court of Pearl River County, which affirmed. G4 appealed, asserting that, according to the Mississippi Supreme Court’s decision in Rankin County Board of Supervisors v. Lakeland Income Properties, LLC, 241 So. 3d 1279 (Miss. 2018), it was automatically exempt from paying ad valorem taxes on the airport property. The Supreme Court agreed, reversed and remanded the circuit court’s decision that affirmed the Board’s refusal to refund the airport property taxes. The Court affirmed the circuit court’s decision that G4 was not entitled to a refund of taxes paid on the Tin Hill subdivision lots.

Barrett, Inc. v. City of Red Lodge

Court: Montana Supreme Court

Citation: 2020 MT 26

Opinion Date: February 4, 2020

Judge: James A. Rice

Areas of Law: Real Estate & Property Law

The Supreme Court affirmed the summary judgment in favor of Collaborative Design Architects, Inc. (CDA) declaring that a prescriptive easement had been acquired over Barrett, Inc.'s property for the Red Lodge High School's secondary access route, holding that the district court did not err in concluding that the City of Red Lodge and the Red Lodge School District established a prescriptive easement. After a survey of its property revealed that an access road to the high school encroached upon its property, Barrett initiated this action against the city and the school district, alleging inverse condemnation, negligence, and state constitutional violations. CDA moved for summary judgment, contending that the city and school district acquired a prescriptive easement across the property. The district court granted the motion. The Supreme Court affirmed, holding that CDA was entitled to judgment as a matter of law upon establishing all of the elements of a prescriptive easement.

TNT Cattle Co. v. Fife

Court: Nebraska Supreme Court

Citation: 304 Neb. 890

Opinion Date: January 31, 2020

Judge: Freudenberg

Areas of Law: Real Estate & Property Law

In this dispute between an out-of-state landlord and her tenant as to the duration of the parties' farm lease agreement the Supreme Court held that the district court did not err in finding for the tenant and awarding damages for breach of contract. The court considered two writings as embodying the parties' agreement, one providing that the "lease period will go from January 2007 until December 2017 a ten year period" and the other stating that the land will be maintained "from January 2007 until December 2017." The district court concluded that there was an eleven-year lease. The landlord appealed. The Supreme Court affirmed, holding that the district court (1) did not lack jurisdiction over the action; (2) did not err in finding that the lease agreement was for a period of elven years; (3) did not err in finding that the agreement was not rescinded by the parties' modification in 2015 of the crops to be grown on the land; and (4) properly found that the tenant suffered $51,336.26 in damages as a result of the landlord evicting the tenant from the property a year early.

Town of Dunbarton v. Guiney

Court: New Hampshire Supreme Court

Docket: 2018-0591

Opinion Date: February 5, 2020

Judge: Anna Barbara Hantz Marconi

Areas of Law: Government & Administrative Law, Real Estate & Property Law, Zoning, Planning & Land Use

Appellant Michael Guiney challenged a superior court declaratory judgment ruling the road between Guiney’s house and barn became a public highway by prescription. Guiney also appealed the trial court’s decision on his cross-claim against appellees David Nault, Joshua Nault, and Leigh Nault (the Naults), which upheld boundary lines and a 50-foot wide right-of-way (50-foot ROW) that appeared in a 1988 boundary line agreement (BLA) under the doctrines of boundary by acquiescence and estoppel by recitals in instruments. The relevant properties and Kelsea Road were located in Dunbarton. Guiney acquired his property (Lot 5) by deed dated March 30, 1999. David Nault purchased three lots (Lots 7, 8, and 9) to the west and north of Lot 5 between 1990 and 1998, and had a home on Lot 7. When Guiney purchased Lot 5, the deed described the boundaries of the property using the language that appeared in the BLA, including the 50-foot ROW in favor of Lot 7. In 2015, Guiney recorded a plan which illustrated the boundary lines of his property as they were described in the BLA. Nault was also aware of the BLA prior to purchasing Lot 7 and understood it to be binding upon him and all future owners of the affected pieces of property. Although he observed very little traffic near his house, Guiney observed plow trucks for the Town of Dunbarton (Town) plowing the disputed area during the winter and using space next to his barn to turn around and go back down Kelsea Road. Although Town trucks never graded the disputed area between Guiney’s house and barn, they used the space next to the barn to turn their trucks around when grading Kelsea Road. The present action was set in motion in 2006, when Guiney filed a petition against Nault to quiet title to a “driveway” Nault had constructed over Lot 5, and outside of the disputed area, to access Lots 8 and 9. The New Hampshire Supreme Court determined the evidence presented to the trial court supported a finding of public use, but not adverse public use, therefore, insufficient to support a finding of a public highway by prescription. The Supreme Court vacated the trial court’s finding that Kelsea Road spurred west between Guiney’s house and barn; affirmed the trial court’s finding that the boundaries between Lot 5 and Lot 7 were established by acquiescence; and affirmed the trial court’s finding that Guiney was judicially estopped from denying the existence of the 50-foot ROW outlined in the BLA.

Columbus City Schools Board of Education v. Franklin County Board of Revision

Court: Supreme Court of Ohio

Citation: 2020-Ohio-353

Opinion Date: February 6, 2020

Judge: Donnelly

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

The Supreme Court affirmed the determination of the board of tax appeals (BTA) of the 2015 tax year value of an apartment complex located in Franklin County, holding that the BTA's decision was reasonable and lawful. At issue was whether the BTA erred in deciding that the sale price paid for the transfer of ownership of a corporate entity, Palmer House Borrower, LLC (Palmer) should be presumed to constitute the value of the real estate owned by that entity. Palmer further asserted that the BTA improperly admitted and relied upon the submitted evidence of the transfer and sale. The Supreme Court affirmed, holding (1) the BTA reasonably considered the sale and conveyance documentation; (2) the BTA reasonably determined that the transaction was, in substance, a sale of the real estate; (3) the appraisal offered by Palmer was not the only evidence of value; and (4) Palmer did not show that the BTA's decision violated Ohio Const. art. XII, 2.

Teal Trading & Development, LP v. Champee Springs Ranches Property Owners Ass'n

Court: Supreme Court of Texas

Docket: 17-0736

Opinion Date: January 31, 2020

Judge: Bland

Areas of Law: Real Estate & Property Law

In this property dispute between adjoining landowners the Supreme Court affirmed the decision of the court of appeals affirming the judgment of the trial court enforcing an easement, holding that a neighborhood association had standing to enforce the easement and that the evidence supported the trial court's rejection of the neighboring property owner's affirmative defenses of waiver and estoppel. Petitioner owned a parcel of undeveloped property that bordered Champee Springs Ranches neighborhood, represented here by its property owners association, and was burdened by a restrictive easement. Petitioner sought to avoid the easement to connect the property to existing public roads and to develop the parcel into a residential subdivision. To further these plans, Petitioner's predecessor built a private construction road across the easement in violation of the easement's access restriction. Champee Springs bought this lawsuit to enforce the easement. The trial court enforced the easement, and the court of appeals affirmed. The Supreme Court affirmed, holding (1) Champee Springs had standing to sue to enforce the easement; (2) the evidence supported the trial court's rejection of Petitioner's affirmative defenses; and (3) this Court declines to declare the restrictive easement void on public policy grounds.

Mueller v. TL90108, LLC

Court: Wisconsin Supreme Court

Docket: 2017AP001962

Opinion Date: February 4, 2020

Judge: Hagedorn

Areas of Law: Real Estate & Property Law

In this case involving a stolen 1938 Talbot Lago automobile the Supreme Court held that a true owner can maintain a replevin action for wrongful detention against a subsequent purchaser of converted property and that a cause of action for replevin based on wrongful detention accrues when the subsequent purchaser obtains the property. In 2001, the Talbot Lago disappeared from a Milwaukee business. In 2015, TL90108, LLC (TL) purchased the vehicle in Europe. In 2018, TL attempted to obtain title in Illinois. When a hit on a stolen vehicle report was triggered, Plaintiffs, who claimed to be the rightful owners, demanded the vehicle's return. TL refused, and Plaintiffs brought an action in replevin. The circuit court dismissed the complaint on the grounds that the claim was barred by the six-year statutes of repose in Wis. Stat. 893.35 and 893.51(1). The court of appeals reversed, concluding that the wrongful detention claim was triggered when Plaintiffs demanded a return of the vehicle, thus restarting the six-year repose clock. The Supreme Court affirmed, holding that the replevin action based on TL's alleged wrongful detention of the Talbot Lago accrued when TL obtained - and wrongfully detained - the vehicle, and therefore, Plaintiffs' cause of action for replevin was not barred by the applicable statutes of repose.