Yes, Trump Is (Still) Engaged in an Attempted Coup; and Yes, It Might Lead to a Constitutional Crisis and a Breaking Point

NEIL H. BUCHANAN

UF Levin College of Law professor and economist Neil H. Buchanan explains why Donald Trump’s actions reflect an attempted coup and might still lead to a constitutional crisis. In this column, Buchanan first explains what a coup is and describes the ways that Trump has failed in his attempts thus far. Buchanan warns about how all this could still end in a constitutional crisis that Trump creates and exploits to stay in power.

Read More

Wilmington Savings Fund Society v. Collart

Court: US Court of Appeals for the First Circuit

Docket: 19-1533

Opinion Date: November 13, 2020

Judge: Sandra Lea Lynch

Areas of Law: Banking, Real Estate & Property Law

The First Circuit reversed the judgment of the district court granting Wilmington Savings Fund Society, FSB a declaratory judgment declaring invalid a home equity line of credit (HELOC) that had previously been granted to Nina Collart's father, Lucien, on property in Massachusetts and granting Wilmington an equitable lien in the property, holding that the court abused its discretion in granting Wilmington an equitable lien. Wilmington sued Nina in her individual capacity as trustee of the Lucien R. Collart, Jr. Nominee Trust and the Anne B. Collart Nominee Trust and also named as a defendant Thomas Mann, Jr., named in his capacity of the Nina B. Collart Trust. Wilmington sought a declaratory judgment that the HELOC was a valid encumbrance on the property and further sought an equitable lien on the property. The district court held that the HELOC was invalid and that Wilmington was entitled to an equitable lien against the property. The First Circuit reversed, holding that the lien was based on an error of law and that the defendants should have had judgment entered in their favor.

McKiver v. Murphy-Brown, LLC

Court: US Court of Appeals for the Fourth Circuit

Docket: 19-1019

Opinion Date: November 19, 2020

Judge: Stephanie Dawn Thacker

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

Plaintiffs, neighbors of Murphy-Brown's hog production facilities, filed suit against the company, seeking relief under state nuisance law from odors, pests, and noises they attribute to farming practices Murphy-Brown implemented at an industrial-scale hog feeding farm. On appeal, Murphy-Brown challenges a jury verdict against it awarding compensatory and punitive damages to plaintiffs. As a preliminary matter, the Fourth Circuit affirmed the district court's judgment rejecting Murphy-Brown's argument that Kinlaw Farms was a necessary and indispensable party under Federal Rule of Civil Procedure 19. Furthermore, the district court's decision as to the applicable statute of limitations was not legal error, and refusing to give the inapplicable jury instruction on continuing nuisances was not an abuse of discretion. The court affirmed the jury's verdict as to liability for compensatory and punitive damages. The court rejected Murphy-Brown's contention that North Carolina private nuisance law bars recovery of compensatory damages of any kind pursuant to the 2017 Right to Farm Act amendment. Rather, the court concluded that the amendment represents a substantive, forward-looking change in the law, and affirmed the district court's conclusion that the issue of annoyance and discomfort damages should go to the jury based on longstanding North Carolina case law allowing such recovery in nuisance suits. The court also affirmed the district court's decisions as to the admission and exclusion of expert testimony, and the district court's jury instruction as to vicarious liability because the contested jury instruction did not prejudice Murphy-Brown. However, the court vacated the jury's judgment as to the amount of punitive damages and remanded for rehearing on the punitive damages issue without the parent company financial evidence, including executive compensation.

Galipeau v. Bixby

Court: Alaska Supreme Court

Docket: S-17365

Opinion Date: November 13, 2020

Judge: Peter J. Maassen

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

A property owner cut down trees on his lot to build a cabin. The trees were protected by his subdivision’s Declaration of Covenants, Conditions, and Restrictions (CCRs) and could not be cut down without prior approval. The owners of an adjacent lot sued him. The superior court found the property owner liable and, following a two-day bench trial, awarded the neighbors compensatory restoration damages and punitive damages. The property owner appealed, arguing that the superior court erred in both damages awards. After review of the trial court record, the Alaska Supreme Court agreed: there was no basis in the evidence for an award of restoration costs when the trees would not be restored, and there was no evidence to support an award based on a loss of value to the neighbors’ property. Nor was there proof of an independent tort as necessary to support a punitive damages award in a case premised on the breach of CCRs. The superior court's judgment was vacated and the matter remanded for entry of a nominal damages award.

Reuter v. Macal

Court: California Courts of Appeal

Docket: B298265(Second Appellate District)

Opinion Date: November 18, 2020

Judge: Kim

Areas of Law: Real Estate & Property Law

After plaintiff executed a deed granting defendant a joint interest in his condominium, plaintiff filed suit years later seeking quiet title to the condominium in his favor. Plaintiff argued, among other things, that the deed should be rescinded under Civil Code section 1590 as a gift made in contemplation of marriage. The trial court ruled in favor of plaintiff on the quiet title claim and entered judgment requiring defendant to reconvey title. In the published portion of this opinion, the Court of Appeal held that the tolling rule in Muktarian v. Barmby (1965) 63 Cal.2d 558, 560, applies to defendant's statute of limitations defense and applies in the context of plaintiff's claim for relief under section 1590. The court explained that, as long as plaintiff enjoyed possession of the condominium and defendant did not press her adverse claim against him in a manner that threatened or disturbed that possession, no statute of limitations began to run. That plaintiff's theory of relief at trial was premised on section 1590 does not change the court's analysis of whether the Muktarian tolling rule applies to the quiet title claim under the facts of this case.

Owen v. Smith

Court: Idaho Supreme Court - Civil

Docket: 47304

Opinion Date: November 16, 2020

Judge: Bevan

Areas of Law: Real Estate & Property Law

In 2018, Derik and Jessica Smith bought property next to Carl and Anita Owen. The Smiths erected a fence along the boundary defined in a survey that was completed as part of their purchase agreement. The Owens disputed the boundary established by the 2018 survey and filed a complaint seeking damages for trespass, deprivation of real and personal property that was in the disputed area, loss in property value, and inability to inhabit and enjoy the property. The Smiths counterclaimed for quiet title and an easement guaranteeing them access to a buried irrigation pipeline that crossed the Owens’ property. The parties each filed a motion for summary judgment. The district court granted the Smiths’ motion for summary judgment, holding the Owens had no right, title or interest in the disputed property and that the Smiths were bona fide purchasers with superior claim to any land described in their deed. The court also granted the Smiths permanent easement rights to the irrigation pipeline. The court dismissed the Owens’ claims for trespass and conversion of personal property. The Owens timely appealed to the Idaho Supreme Court. Finding no reversible error in the district court's judgment, the Supreme Court affirmed.

Tzakis v. Maine Township

Court: Supreme Court of Illinois

Citation: 2020 IL 125017

Opinion Date: November 19, 2020

Judge: Mary Jane Theis

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

The plaintiffs filed suit concerning flood damage to their Maine Township property after heavy rains in September 2008, alleging that public entities breached duties owed to them with respect to a stormwater drainage system located near their properties. Plaintiffs claimed that certain actions by the defendants increased water flow to the area and that there has been major flooding in the past. After a 2002 event, the Illinois Department of Natural Resources discovered “numerous bottlenecks and obstructions to flow as the causes of the invasive flooding” in the community. The trial court dismissed, finding that the defendants owed no duty to plaintiffs under the public duty rule and plaintiffs had not alleged any special duty. In the meantime, the Illinois Supreme Court (Coleman) abolished the public duty rule, which provided that a local governmental entity does not owe any duty to individual members of the public to provide adequate governmental services. The trial court found that the new law set forth in Coleman should not be retroactively applied. The Illinois Supreme Court affirmed. Coleman clearly established a new principle of law, overturning decades of existing precedent. Given these circumstances and the two rationales for abolishing the public duty rule, the new law announced in Coleman would not be thwarted by its prospective application. Prospective application avoids substantial inequitable results for defendants who have relied upon the public duty rule throughout the long course of this litigation.

Ogden v. Labonville

Court: Maine Supreme Judicial Court

Citation: 2020 ME 133

Opinion Date: November 17, 2020

Judge: Joseph Jabar

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

The Supreme Judicial Court affirmed the summary judgment entered by the superior court ejecting Defendant from real property pursuant to Me. Rev. Stat. 14, 6701-7053, holding that the trial court properly entered judgment for Plaintiffs, the property owners. Plaintiffs filed a complaint seeking to eject Defendant from the property and obtain a writ of possession. The trial court granted Plaintiffs' motion for summary judgment for their claim of ejectment. The Supreme Judicial Court affirmed, holding that the trial court (1) correctly interpreted Me. Rev. Stat. 14, 6961 and the legal framework governing real actions for ejectment; (2) did not err in entering partial summary judgment for Plaintiffs granting them a writ of possession; and (3) did not err in concluding that its judgment rendered Defendant's counterclaim for declaratory judgment moot.

New Hampshire v. Beattie

Court: New Hampshire Supreme Court

Docket: 2019-0460

Opinion Date: November 19, 2020

Judge: James P. Bassett

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

Defendants Shane and Trina Beattie appealed a superior court orderthat dismissed with prejudice their preliminary objection challenging the State’s taking of 0.93 acres of their land in fee simple, as well as permanent and temporary easements. The Beatties argued the trial court erred when, in dismissing their preliminary objection which challenged the necessity and net-public benefit of the taking, the trial court applied the fraud or gross mistake standard of review set forth in RSA chapter 230 rather than a de novo standard pursuant to RSA chapter 498-A. The State contended the trial court did not err because RSA chapter 230, not RSA chapter 498-A governed the outcome of the case. The New Hampshire Supreme Court agreed with the Beatties, reversed and remanded.

Estate of Lindvig

Court: North Dakota Supreme Court

Citation: 2020 ND 236

Opinion Date: November 19, 2020

Judge: Daniel J. Crothers

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

Gail Howard, Bruce Lindvig, and Milton Lindvig, personally and as Successor Personal Representative to the Estate of Ralph H. Lindvig, (together “the estate of Ralph Lindvig”) appealed a judgment entered in consolidated formal probate proceedings. In 2007, due to financial concerns related to paying for Ralph's care, his wife Dorothy Lindvig, acting as Ralph's attorney in fact, sold portions of Ralph's interests in the land he received from his parents to Milton Lindvig, Ralph's brother. The transfers were made by two warranty deeds, each of which severed the minerals and reserved them to Ralph and Dorothy as joint tenants. In May of 2007, Dorothy, again acting as Ralph's attorney in fact, conveyed the Wattam land to herself by warranty deed. When Ralph died, Dorothy was the personal representative of his estate. After her death in 2009, she was replaced by Milton. Dorothy died intestate, survived by a brother and her sister, Patricia Jellum, who was the personal representative of Dorothy's estate. The estate of Ralph Lindvig filed a petition in Dorothy's probate proceedings to set aside the intestate distribution of the minerals she severed and the Wattam land she conveyed to herself. The estate argued the transfers were beyond Dorothy's authority because they diminished the size of his estate and were not approved by a court, all in contravention of the power of attorney’s gifting provisions. The parties stipulated to consolidating the two probates as formal administrations. The probate court determined Dorothy did not breach her fiduciary duties by engaging in improper self-dealing. The North Dakota Supreme Court affirmed the probate court's judgment.

MDU v. Behm

Court: North Dakota Supreme Court

Citation: 2020 ND 234

Opinion Date: November 19, 2020

Judge: Jerod E. Tufte

Areas of Law: Real Estate & Property Law

Lavern Behm appealed a judgment ordering Montana-Dakota Utilities Co. (“MDU”) to pay him $17,443 in attorney’s fees and costs incurred in an eminent domain action. Behm argued his constitutional rights were violated in the eminent domain action, and the district court erred by failing to award him some of the attorney’s fees he requested. Finding no reversible error, the North Dakota Supreme Court affirmed.

Antero Resources Corp. v. Steager

Court: Supreme Court of Appeals of West Virginia

Docket: 18-1106

Opinion Date: November 17, 2020

Judge: Armstead

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

In this tax appeal, the Supreme Court affirmed in part and reversed in part the final order of the circuit court determining that certain purchases of tangible personal property and services made by Antero Resources Corporation did not qualify for the direct use exemption under W. Va. Code 9(b)(2) and 11-15A-3(a)(2) (the direct use exemption), holding that Antero was entitled to the direct use exemption for certain purchases and services. The office of tax appeals reimposed a sale and use tax assessment against Antero for purchases and rentals of certain personal property and services. The circuit court reversed, determining that because certain purchases of tangible personal property and services made by Antero were not directly used in its natural resource production, they did not qualify for the direct use exemption. The Supreme Court reversed in part, holding that Antero (1) was entitled to the direct use exemption for crew quarters and related equipment, portable toils, sewage systems, related water systems, and septic cleaning charges; and (2) was not entitled to the exemption for the rentals of trash trailers and waste receptacles.

Carr v. Veach

Court: Supreme Court of Appeals of West Virginia

Docket: 19-0216

Opinion Date: November 17, 2020

Judge: Armstead

Areas of Law: Real Estate & Property Law

The Supreme Court affirmed the order of the circuit court denying Petitioners' motion for a new trial and renewed motion for a new trial after a bench trial, holding that the circuit court did not err in finding that Petitioners had neither an express easement nor a prescriptive easement across Respondents' property. At issue was an internal private road on Respondents' property that stretched to Petitioners' property. Respondents eventually revoked permission to use the internal road and blocked Petitioners' access across the private road. The circuit court determined that Petitioners had neither an express easement nor a prescriptive easement across Respondents' property. The Supreme Court affirmed, holding that the circuit court did not abuse its discretion in finding (1) no express easement existed that granted Petitioners the right to use the private road crossing Respondents' property; and (2) no easement across Respondents' land was established by prescription.

Johnson v. Pinson

Court: Supreme Court of Appeals of West Virginia

Docket: 19-1014

Opinion Date: November 17, 2020

Judge: Walker

Areas of Law: Contracts, Real Estate & Property Law

The Supreme Court affirmed the order of the circuit court granting summary judgment to Ruth Ann Pinson and dismissing Denise Johnson's claim that Ruth's husband, Mark Pinson, violated West Virginia's Uniform Fraudulent Transfers Act's (UFTA), W. Va. Code 40-1A-1 to -15, prohibition against fraudulent transfers, holding that Plaintiff did not present evidence demonstrating the existence of a material fact regarding Mark's status as her debtor within the meaning of the UFTA. Johnson asserted that Mark conveyed real property to Ruth with the intent to hinder, delay, or defraud Johnson's attempt to collect on a judgment assigned to her by a third party. The circuit court found that Ruth was entitled to summary judgment as a matter of law. The Supreme Court affirmed, holding that the circuit court did not misinterpret the UFTA or err in denying Johnson's motion to amend the complaint to add Mark as a defendant.

Sheehan v. Mortgage Electronic Registration Systems, Inc.

Court: Supreme Court of Appeals of West Virginia

Docket: 19-1082

Opinion Date: November 17, 2020

Judge: Walker

Areas of Law: Real Estate & Property Law

The Supreme Court answered in the affirmative a question certified to it by the Bankruptcy Court for the North District of West Virginia, concluding that a manufactured home with a title issued by the Division of Motor Vehicles (DMV) may be converted to real property by operation of common law even when the home still maintains a motor vehicle title. At issue was how, under state law, one can perfect a security interest upon a manufactured home that maintains both personal and real property characteristics. The Supreme Court determined that satisfying the requirements of Snuffer v. Spangler, 92 S.E. 106 ( W. Va. 1917) converts the legal character of a manufactured home from personal to real property such that a lien on that property may be perfected by deed of trust even if the home's owners have not cancelled the DMV title under the cancellation procedure of W. Va. Cod3 17A-3-12b(a).