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Weekly Opinion SummariesReal Estate & Property Law
Weekly Summaries Distributed September 30, 2016
· The Gardens at Glenlakes Property Owners Association, Inc., et al. v. Baldwin County Sewer Service, LLC
Contracts, Real Estate & Property Law
Supreme Court of Alabama · Windel v. Carnahan
Civil Procedure, Real Estate & Property Law
Alaska Supreme Court · Boston Redevelopment Auth. v. Nat'l Park Serv.
Environmental Law, Government & Administrative Law, Real Estate & Property Law
U.S. Court of Appeals for the First Circuit · Estate of Ketterling
Civil Procedure, Real Estate & Property Law
North Dakota Supreme Court · Colorado Dept. of Transportation v. Amerco Real Estate
Constitutional Law, Government & Administrative Law, Real Estate & Property Law, Zoning, Planning & Land Use
Colorado Supreme Court · Pulte Home Corp. v. Countryside Cmty. Ass'n, Inc.
Real Estate & Property Law
Colorado Supreme Court · Ryan Ranch Cmty. Ass'n, Inc. v. Kelley
Real Estate & Property Law
Colorado Supreme Court · California v. Davis
Constitutional Law, Criminal Law, Real Estate & Property Law
California Court of Appeal · Hoffman v. Martinez
Contracts, Real Estate & Property Law
U.S. Court of Appeals for the Fifth Circuit · Scungio Borst & Assoc. v. 410 Shurs Lane Developers, LLC
Construction Law, Contracts, Real Estate & Property Law
Supreme Court of Pennsylvania · Underhill v. Mattson
Real Estate & Property Law
South Dakota Supreme Court · Brant Lake Sanitary Dist. v. Thornberry
Real Estate & Property Law, Zoning, Planning & Land Use
South Dakota Supreme Court · Hyde v. Sully County Bd. of Adjustment
Real Estate & Property Law, Zoning, Planning & Land Use
South Dakota Supreme Court Receive this and other FREE daily opinion summaries from Justia
The Gardens at Glenlakes Property Owners Association, Inc., et al. v. Baldwin County Sewer Service, LLCCourt: Supreme Court of Alabama Docket: 1150563 Opinion Date: September 23, 2016 Areas of Law: Contracts, Real Estate & Property Law In 1985, South Alabama Sewer Service, Inc. ("SASS"), and Lake View Developers, Ltd. ("Lake View"), entered into an agreement where SASS would construct a sewer line from its waste-treatment facility to a new planned subdivision and golf course ("Lake View Estates). In 1989, Lake View filed for bankruptcy. The development and golf course, excluding lots that had already been sold, were placed in receivership. 1991, SASS and Lakeview Realty entered into a new sewer agreement. In July 2003, Baldwin County Sewer Service, LLC ("BCSS"), purchased from SASS the sewer lines and sewer facilities servicing Lake View Estates. In 2004, BCSS purchased all the stock of SASS. Subsequent to BCSS's purchase of SASS and its facilities in Baldwin County, all monthly sewer fees related to Lake View Estates had been billed by and paid to BCSS. Sometime following its acquisition of SASS's sewer system, BCSS enacted a rate increase affecting customers in Lake View Estates. In 2014, multiple homeowner associations whose members were property owners in Lake View Estates, sued BCSS, generally asserting that BCSS had violated the sewer-service-rate provision of the 1991 agreement. The associations lost at trial on grounds that they lacked standing to sue to enforce the 1991 agreement. The Supreme Court disagreed, reversed and remanded for further proceedings. http://j.st/467a View Case On: Justia Google Scholar

Windel v. CarnahanCourt: Alaska Supreme Court Docket: S-15801 Opinion Date: September 23, 2016 Areas of Law: Civil Procedure, Real Estate & Property Law At issue in this case was the validity of an easement that Thomas Carnahan claimed extended over property owned by Keven and Marlene Windel. In addition, there were issues surrounding damage allegedly caused by improvements within that easement. Carnahan won at trial in "Windel I," but the Supreme Court remanded the case for reconsideration of attorney fee issues. On remand, the superior court awarded Carnahan feed, finding that he was the prevailing party. The Windels appealed again, arguing the superior court erred in its analysis of Rule 68 when awarding Carnahan attorney fees. Finding no reversible error in the resolution of the fee dispute, the Supreme Court affirmed. http://j.st/467D View Case On: Justia Google Scholar

Boston Redevelopment Auth. v. Nat'l Park Serv.Court: U.S. Court of Appeals for the First Circuit Docket: 15-2270 Opinion Date: September 23, 2016 Areas of Law: Environmental Law, Government & Administrative Law, Real Estate & Property Law At issue in this dispute was a piece of real estate, called Long Wharf, that juts into Boston Harbor. The Boston Redevelopment Authority (BRA) wished to develop the Long Wharf pavilion, which stands at the northern side of the Wharf, for commercial purposes, but the National Park Service (NPS) refused to grant the BRA permission to do so on the ground that the land remain open for recreational use. The BRA sued NPS and the Secretary of the Interior under the Land and Water Conservation Funds Act. The district court granted summary judgment in favor of the defendants. The First Circuit affirmed, holding that the decision of the NPS was supported by substantial evidence and was neither arbitrary nor capricious. http://j.st/468R View Case On: Justia Google Scholar

Estate of KetterlingCourt: North Dakota Supreme Court Citation: 2016 ND 190 Opinion Date: September 26, 2016 Areas of Law: Civil Procedure, Real Estate & Property Law Linda Ketterling was married to Larry Ketterling. They were the co-owners of L & L Rentals, and each owned a fifty percent membership interest in the company. Larry died on July 31, 2014. An application for the informal probate of Larry's will was filed and a personal representative was appointed. In November 2015, the personal representative petitioned for approval of the final accounting, settlement, and distribution of the estate, including distribution of Larry's interest in L & L Rentals to his children. Linda objected to the petition, arguing Larry's interest in the company was not available for distribution because she intended to purchase the interest under the terms of the L & L Rentals operating agreement. In 2016, a bank petitioned for allowance of its claim against the estate for payment of debts, including a loan to L & L Rentals. Linda filed a claim against the estate for amounts she may be required to pay creditors on loans to Larry. Linda then objected to the petition for approval of an amended final accounting and distribution, arguing L & L Rentals was not an estate asset. Linda filed a notice of appeal, stating she was appealing the earlier order. After review, the Supreme Court found that the district court had not ruled on Linda's claim: the petition for approval of the amended final accounting and distribution, or the objection. There were also remaining issues with creditors and the transfer of the ownership interest in L & L Rentals could have been interrelated to these issues. The Supreme Court held that the district court's order was not appealable without Rule 54(b) certification, if it was providently granted. Linda did not request Rule 54(b) certification, and therefore this was not a final, appealable order. Concluding it did not have jurisdiction to hear this appeal, the Supreme Court dismissed. http://j.st/46X3 View Case On: Justia Google Scholar

Colorado Dept. of Transportation v. Amerco Real EstateCourt: Colorado Supreme Court Citation: 2016 CO 62 Opinion Date: September 26, 2016 Areas of Law: Constitutional Law, Government & Administrative Law, Real Estate & Property Law, Zoning, Planning & Land Use The Department of Transportation petitioned to acquire property owned by Amerco Real Estate Co. and occupied by U-Haul Co. by eminent domain, asserting that the property in question was necessary for a highway expansion project. U-Haul opposed the petition, asserting that the Department lacked authority to condemn its land on grounds that the statutory perquisites for acquiring land in the manner the Department used, were not met. The district court declined to dismiss the petition and instead granted the Department's motion for immediate possession. The Supreme Court reversed, finding that the transportation commission's enabling legislation, to the extent that it purported to delegate to the Department the choice of particular properties to be taken for highway projects and the manner of their taking, was an unlawful delegation of the commission's statutorily imposed obligation. The case was remanded back to the district court for dismissal of the Department's original petition. http://j.st/46Xw View Case On: Justia Google Scholar

Pulte Home Corp. v. Countryside Cmty. Ass'n, Inc.Court: Colorado Supreme Court Citation: 2016 CO 64 Opinion Date: September 26, 2016 Areas of Law: Real Estate & Property Law The Countryside Townhome Subdivision was a residential common interest community. The homeowners association for the Subdivision filed a complaint against the developer, seeking over $400,000 in past-due assessments for maintenance of the developer's unsold properties and related common elements. The developer's liability was implicated when its properties became part of the Subdivision under the community's governing instruments and the Colorado Common Interest Ownership Act. In a split decision, the court of appeals determined that the community was formed when the document containing the community's covenants and the plat were recorded, and that the developer's properties were brought into the community at that time. The Supreme Court, however, disagreed, finding that the mere recordation of the covenants and plat did not create the common interest community. "Rather, the community was created when the developer first subjected the property to the covenants." Because the developer's property could not become part of the community until it was added, and the developer was not otherwise liable for the assessments. http://j.st/46Xc View Case On: Justia Google Scholar

Ryan Ranch Cmty. Ass'n, Inc. v. KelleyCourt: Colorado Supreme Court Citation: 2016 CO 65 Opinion Date: September 26, 2016 Areas of Law: Real Estate & Property Law Ryan Ranch was a residential common interest community. The homeowners association filed a complaint against several low owners abutting Ryan Ranch, seeking past-due assessments, penalties and fees for maintenance and services provided by the association. The issue this case presented for the Supreme Court's review centered on whether the abutting owners owed the fees and penalties when it was discovered the developer inadvertently annexed their lots. In a split decision, the court of appeals determined the lots were not validly annexed because the annexation failed to comply with the Colorado Common Interest Ownership Act. The Supreme Court agreed that the annexation failed for failure to comply with the CCIOA, and affirmed. http://j.st/46Xp View Case On: Justia Google Scholar

California v. DavisCourt: California Court of Appeal Docket: C080545 Opinion Date: September 27, 2016 Areas of Law: Constitutional Law, Criminal Law, Real Estate & Property Law In February 2014, a jury found defendant Kenneth Davis guilty of two 2010 misdemeanors, diverting the natural course of a stream and petty theft (of water). It also found him guilty of a trespass injuring wood or timber in 2010 in another case (which was consolidated solely for purposes of trial) that involved a road he had bulldozed across neighboring property to his own. The court placed him on a three-year period of informal probation, conditioned on a 90-day jail term. Defendant appealed his conviction of petty theft of water, arguing there could not be a theft in this case as a matter of law because the natural stream at issue was nuisance groundwater that the owner was diverting from its property, and the State of California had only a regulatory interest in use of these public waters that otherwise were not personalty that can be the subject of a larceny. The Court of Appeal agreed that there could not be a simple larceny of uncaptured flowing water. The Court reversed and remanded for dismissal of that count. http://j.st/46BD View Case On: Justia Google Scholar

Hoffman v. MartinezCourt: U.S. Court of Appeals for the Fifth Circuit Docket: 15-10046, Docket: 15-10293 Opinion Date: September 28, 2016 Areas of Law: Contracts, Real Estate & Property Law After plaintiff sold a Mark Rothko painting to David Martinez through L&M Arts, she filed suit alleging that she was fraudulently induced into selling the painting with assurances of secrecy and that the eventual public re-sale of the painting constituted a breach of a confidentiality provision in her agreement with the original buyer. The court concluded that plaintiff failed to show that a genuine dispute of material fact exists regarding each element of Texas fraudulent inducement; L&M was entitled to judgment as a matter of law on plaintiff's breach-of-contract claim where the confidentiality clause did not require secrecy as to the fact of the 2007 sale, and the jury therefore did not hear evidence from which it could reasonably have found that L&M breached the Agreement; and even if a reasonable jury could have found that L&M breached the agreement, L&M would nevertheless be entitled to judgment as a matter of law because the jury’s damages award rested on a legally non-viable measure of damages. The court affirmed the district court’s grant of summary judgment for L&M on plaintiff's fraudulent inducement claim; affirmed the district court's judgment as a matter of law for the Martinez defendants on plaintiff's breach-of-contract claim; reversed the denial of judgment as a matter of law for L&M on plaintiff's breach-of-contract claim; and affirmed the denial of plaintiff's motion for attorney's fees under Texas Civil Practice & Remedies Code 38.001(8). The court remanded for further proceedings. http://j.st/466x View Case On: Justia Google Scholar

Scungio Borst & Assoc. v. 410 Shurs Lane Developers, LLCCourt: Supreme Court of Pennsylvania Docket: 28 EAP 2015 Opinion Date: September 28, 2016 Areas of Law: Construction Law, Contracts, Real Estate & Property Law In this appeal, the issue presented for the Supreme Court's review was whether a contractor could maintain an action under the Contractor and Subcontractor Payment Act (CASPA) against a property owner’s agents. Beginning in 2005, Appellant Scungio Borst & Associates (SBA) entered into a series of written and oral construction contracts with Appellee 410 Shurs Lane Developers, LLC (410 SLD), which 410 SLD’s part-owner and president, Appellee Robert DeBolt, executed on 410 SLD’s behalf. Therein, SBA agreed to improve real property owned by 410 SLD in connection with the development of a condominium complex, and did so until November 2006, when SBA’s contracts were terminated with approximately $1.5 million in outstanding payments due. SBA requested payment, but 410 SLD, again through DeBolt, refused. Accordingly, SBA sued 410 SLD; its alleged successor corporation, Appellee Kenworth II, LLC; and DeBolt in his personal capacity. SBA asserted, among other claims, violations of CASPA. After careful review, the Supreme Court held that a contractor could not maintain an action under CASPA, and, accordingly, affirmed the order of the Superior Court. http://j.st/4669 View Case On: Justia Google Scholar

Underhill v. MattsonCourt: South Dakota Supreme Court Citation: 2016 S.D. 69 Opinion Date: September 28, 2016 Areas of Law: Real Estate & Property Law At issue in this dispute was property that consisted of a one-car garage and the land on which it sat. The dispute involved several properties, including Lot 8A, the property formerly owned by Rocky Mattson, who used and maintained the garage. Ron Underhill, the record owner of the other properties involved in this dispute, brought suit against Mattson, Mattson's wife, and Carmen Walton, the current record owner of Lot 8A, to quiet title to the disputed property. Underhill also sought damages and punitive damages on the ground that Walton’s use of the garage amounted to conversion. The trial court concluded that Walton had acquired the disputed property by adverse possession through her predecessors in interest and that Underhill’s conversion claim was moot. The Supreme Court affirmed, holding that the circuit court did not err in denying Underhill’s claims for quiet title and conversion. http://j.st/46up View Case On: Justia Google Scholar

Brant Lake Sanitary Dist. v. ThornberryCourt: South Dakota Supreme Court Citation: 2016 S.D. 66 Opinion Date: September 28, 2016 Areas of Law: Real Estate & Property Law, Zoning, Planning & Land Use In 2007, Brant Lake enacted an ordinance regulating the use of public and private sewers and requiring connection to the public sewer. In 2014, Brant Lake notified Steven and Gloria Thornberry that, pursuant to the ordinance, they must install suitable toilet and sanitation facilities in their dwelling and connect those facilities to the main public sewer line within sixty days. When the Thornberrys had no taken any steps to connect to the main sewer system over a year later, Brant Lake brought this action seeking to enjoin the Thornberrys from using or occupying their property until they connected their dwelling to Brant Lake’s sewer line. The circuit court granted summary judgment in favor of the Thornberrys, concluding that the ordinance did not apply to the Thornberrys. The Supreme Court affirmed, holding that Brant Lake’s ordinances, as written, did not require the Thornberrys to connect to its public sewer system. http://j.st/46uT View Case On: Justia Google Scholar

Hyde v. Sully County Bd. of AdjustmentCourt: South Dakota Supreme Court Citation: 2016 S.D. 65 Opinion Date: September 28, 2016 Areas of Law: Real Estate & Property Law, Zoning, Planning & Land Use In 2015, the Sully County Board of Adjustment granted a conditional use permit (CUP) to Ring-Neck Energy & Feed, LLC for an ethanol plant. Petitioners filed a petition for writ of certiorari with the circuit court alleging that the Board’s decision granting the CUP was illegal. Ring-Neck Energy intervened and moved to quash the writ and dismiss the petition as untimely. The circuit court determined that it lacked subject-matter jurisdiction because the petition was untimely under S.D. Codified Laws 11-2-61. The Supreme Court affirmed, holding that Petitioners failed timely to appeal the Board’s decision to grant a CUP to Ring-Neck Energy. http://j.st/46uS View Case On: Justia Google Scholar
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