Latest 13 Cases This Week: FV-I, Inc. v. Kallevig (Kansas Supreme Court), Nautilus, Inc. v. Yang (Cal. Ct. App.), Fletcher v. United States (10th ...
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Curtis D. Harris, BS, CGREA, REB
Associate Degree in Architecture, LACCBachelor of Science in Real Estate, CSULA
State Certified General Appraiser
Real Estate Broker
ASTM E-2018 Commercial Real Estate Inspector
HUD 203k Consultant
HUD/FHA Real Estate Appraiser/Reviewer
FannieMae REO ConsultantCTAC LEED-GREEN Certificate The Harris Company, Forensic Appraisers and Real Estate Consultants
*PIRS/Harris Company and the Science of Real Estate-Partners Since 1984*630 North Sepulveda Boulevard, Suite 9A
El Segundo, CA. 90245
310-337-1973 Office
310-251-3959 CellWebSite: http://www.harriscompanyrec.com Resume: http://www.harriscompanyrec.com/rESUME2011.pdf Commercial Appraiser Blog: http://commercialappraiser.typepad.com/blog/ IT'S THE LAW-Designation Discrimination is Illegal [FIRREA, Sec. 564.6]: Professional Association Membership: "A State Certified General Appraiser may not be excluded from consideration for an assignment for a federally related transaction by virtue of membership or lack of membership in any particular appraisal organization," including the appraisal institute. http://www.ofi.state.la.us/re-otspart565.pdf CONFIDENTIALITY/PRIVILEGE NOTICE: This transmission and any attachments are intended solely for the addressee. The information contained in this transmission is confidential in nature and protected from further use or disclosure under U.S. Pub. L. 106-102, 113 U.S. Stat. 1338 (1999), and may be subject to consultant/appraiser-client or other legal privilege. Your use or disclosure of this information for any purpose other than that intended by its transmittal is strictly prohibited and may subject you to fines and/or penalties under federal and state law. If you are not the intended recipient of this transmission, please destroy all copies received and confirm destruction to the sender via return transmittal.
From: Real Estate & Property Law - Justia Weekly Opinion Summaries [mailto:[email protected]] On Behalf Of Real Estate & Property Law - Justia Weekly Opinion Summaries
Sent: Friday, 28 April, 2017 7:04 AM
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Subject: Latest 13 Cases This Week: FV-I, Inc. v. Kallevig (Kansas Supreme Court), Nautilus, Inc. v. Yang (Cal. Ct. App.), Fletcher v. United States (10th ...
Free Real Estate & Property Law case summaries from Justia.
If you are unable to see this message, click here to view it in a web browser.Real Estate & Property Law
April 28, 2017
Table of ContentsFV-I, Inc. v. KallevigBanking, Real Estate & Property Law Kansas Supreme CourtNautilus, Inc. v. YangReal Estate & Property Law California Courts of AppealFletcher v. United StatesEnergy, Oil & Gas Law, Government & Administrative Law, Native American Law, Real Estate & Property Law U.S. Court of Appeals for the Tenth CircuitMarina Pacifica Homeowners Assoc. v. Southern California Financial Corp.Contracts, Real Estate & Property Law California Courts of AppealBlack Stone Minerals Co. v. BrokawReal Estate & Property Law North Dakota Supreme CourtEstate of NohleCivil Procedure, Trusts & Estates, Real Estate & Property Law North Dakota Supreme CourtOgren v. SandakerEnergy, Oil & Gas Law, Real Estate & Property Law North Dakota Supreme CourtGoodall v. MonsonEnergy, Oil & Gas Law, Real Estate & Property Law North Dakota Supreme CourtDobson Bay Club II DD, LLC v. La Sonrisa De Siena, LLCBanking, Contracts, Real Estate & Property Law Arizona Supreme CourtVillani v. SeibertCivil Procedure, Real Estate & Property Law Supreme Court of PennsylvaniaXia v. Probuilders Specialty Ins. Co.Construction Law, Insurance Law, Personal Injury, Real Estate & Property Law Washington Supreme CourtCounty of Douglas v. Nebraska Tax Equalization & Review CommissionGovernment & Administrative Law, Real Estate & Property Law, Tax Law Nebraska Supreme CourtErps v. MeadowsContracts, Real Estate & Property Law Supreme Court of Appeals of West Virginia
New on VerdictLegal Analysis and CommentaryMr. No-Government President Discovers the Government MARCI A. HAMILTON Marci A. Hamilton, a Fox Distinguished Scholar in the Fox Leadership Program at the University of Pennsylvania, describes how the separation of powers built into U.S. democracy is working as it should to prevent abuses of power by, at this time, the executive.Read More
Real Estate & Property Law OpinionsFV-I, Inc. v. Kallevig Court: Kansas Supreme CourtDocket: 111235 Opinion Date: April 21, 2017Judge: Eric S. Rosen Areas of Law: Banking, Real Estate & Property Law This case arose from a mortgage foreclosure petition filed by FV-I, Inc. The dispute in this case was between FV-I and Bank of the Prairie (BOP), a bank with junior mortgages on the same property. The parties agreed to sell the property and place the proceeds in escrow pending resolution of this case. Summary judgment was initially granted in favor of BOP. The Court of Appeals reversed and remanded for a trial to determine whether FV-I had possession of the promissory note underlying the mortgage at the time it filed the mortgage foreclosure. After a trial, the district court concluded that FV-I lacked standing to file the petition because it did not have possession of the original note prior to filing its petition and that BOP’s mortgages were superior to FV-I’s mortgage. The Court of Appeals affirmed. The Supreme Court reversed, holding that evidentiary rulings excluding endorsements on the promissory note require a remand for a rehearing regarding standing and the panel’s priority determination. Remanded.Read Opinion Are you a lawyer? Annotate this case.Nautilus, Inc. v. Yang Court: California Courts of AppealDocket: G051956 (Fourth Appellate District) Opinion Date: April 21, 2017Judge: Richard D. Fybel Areas of Law: Real Estate & Property Law Nautilus, Inc. obtained a judgment against Stanley Kuo Hua Yang, and recorded an abstract of judgment against real property on which Stanley and his brother, Peter Chun Hua Yang, held title. Stanley and Peter transferred title on the property to their father, Chao Chen Yang, who obtained a reverse mortgage loan on the property from Security One Lending. In its title search, the title insurance company missed Nautilus’s abstract of judgment when the reverse mortgage loan funded. Stanley’s transfer of the property to Chao Chen was a fraudulent conveyance under the Uniform Fraudulent Transfer Act (UFTA). Nautilus sued Stanley, Peter, and Chao Chen. Nautilus also sued Urban Financial Group, Inc., which bought the mortgage from Security One, for damages resulting from the fraudulent conveyance from Stanley to Chao Chen. Following a bench trial, the court found that Security One and Urban Financial had acted in good faith, and could not be liable to Nautilus. Finding no reversible error in that judgment, the Court of Appeal affirmed: the trial court misapplied the burden of proof in connection with the good faith defense. "We publish our opinion because of our analysis of the requirements of the good faith defense. Some cases have held that a transferee cannot avail itself of the good faith defense if the transferee had fraudulent intent, colluded with a person who was engaged in a fraudulent conveyance, or actively participated in a fraudulent conveyance. . . . After analyzing those state and federal cases, we hold a transferee cannot benefit from the good faith defense if that transferee had fraudulent intent, colluded with a person who was engaged in the fraudulent conveyance, actively participated in the fraudulent conveyance, or had actual knowledge of facts showing knowledge of the transferor’s fraudulent intent."Read Opinion Are you a lawyer? Annotate this case.Fletcher v. United States Court: U.S. Court of Appeals for the Tenth CircuitDocket: 16-5050 Opinion Date: April 21, 2017Judge: Paul Joseph Kelly, Jr. Areas of Law: Energy, Oil & Gas Law, Government & Administrative Law, Native American Law, Real Estate & Property Law Plaintiffs-Appellants, a certified class of Osage tribal members who owned headrights, appealed the district court’s accounting order. Plaintiffs alleged that the government was improperly distributing royalties to non-Osage tribal members, which diluted the royalties for the Osage tribal members, the rightful headright owners. The complaint attributed this misdistribution to the government’s mismanagement of the trust assets and the government’s failure to perform an accounting. Thus, Plaintiffs sought to compel the government to perform an accounting and to prospectively restrict royalty payments to Osage tribal members and their heirs. The district court dismissed Plaintiffs’ accounting claim because it found that the applicable statute only required the government to account for deposits, not withdrawals, and that such an accounting would not support Plaintiffs’ misdistribution claim. After review, the Tenth Circuit could not say the district court abused its discretion. "The accounting the district court fashioned will certainly inform Plaintiffs of the trust receipts and disbursements and to whom those disbursements were made."Read Opinion Are you a lawyer? Annotate this case.Marina Pacifica Homeowners Assoc. v. Southern California Financial Corp. Court: California Courts of AppealDocket: B270580 (Second Appellate District) Opinion Date: April 24, 2017Judge: Elizabeth A. Grimes Areas of Law: Contracts, Real Estate & Property Law In Marina Pacifica Homeowners Assn. v. Southern California Financial Corp., this court determined that a monthly "assignment fee," payable by individual condominium unit owners to the developers of the condominium project, was properly collectible under those statutory provisions. On appeal, the Association challenged the trial court's judgment determining the amended amounts owing from unit owners to the developers' successor in interest, Southern California, for the assignment fee. The court need not decide whether it could properly reconsider its decision in Marina Pacifica I, because the amended statute and its legislative history demonstrate that the Legislature intended in any event to permit the Marina Pacifica I assignment fees to remain in place. Accordingly, the court affirmed the judgment.Read Opinion Are you a lawyer? Annotate this case.Black Stone Minerals Co. v. Brokaw Court: North Dakota Supreme CourtCitation: 2017 ND 110 Opinion Date: April 25, 2017Judge: Tufte Areas of Law: Real Estate & Property Law Missouri River Royalty Corporation and Bauer Family LLP appeal a district court's order granting summary judgment to the defendants, most of whom are members of the Brokaw family (collectively "Brokaw"). In 1958, Lyman Brokaw conveyed "an undivided full interest" in the minerals in and under the property at issue here to North American Royalties Inc. ("North American"). Later that year, North American conveyed an undivided one-half interest in the minerals to Claud Hamill. Over the next fifty years, North American transferred other fractional interests to various persons and entities. By the time of this action, Plaintiffs alleged the ownership proportions of the 160 mineral acres were as follows: The Hamill Foundation - 50%; Black Stone Minerals Co. - 25%; Missouri River Royalty Corp. - 18.75%; and Bauer Family LLP - 6.25%. (Appellants Missouri River Royalty Corp. and Bauer Family LLP were referred to as "North American Successors.") North American Successors claim ownership through North American and initiated this action against Brokaw to quiet title in the minerals. Missouri River Royalty Corporation and Bauer Family LLP appeal a district court's order granting summary judgment to the defendants, most of whom are members of the Brokaw family (collectively "Brokaw"). On cross motions for summary judgment, the district court quieted title to certain minerals in favor of Brokaw. The Supreme Court affirmed the district court except to the extent the district court vested title in North American. As to that, the Supreme Court reversed the denial of the motion to correct judgment and remand for entry of a corrected judgment vesting title of the one half-interest not held by Brokaw only in North American Royalties Inc.'s successors in interest.Read Opinion Are you a lawyer? Annotate this case.Estate of Nohle Court: North Dakota Supreme CourtCitation: 2017 ND 100 Opinion Date: April 25, 2017Judge: Tufte Areas of Law: Civil Procedure, Trusts & Estates, Real Estate & Property Law Dori Lentz appealed an order and judgment denying her request to modify the distribution decrees of the Estate of Charlotte C. Nohle and ordering her to pay the estate's attorney's fees. After review, the Supreme Court affirmed, concluding the district court did not abuse its discretion by denying the requested modification or by awarding attorney's fees.Read Opinion Are you a lawyer? Annotate this case.Ogren v. Sandaker Court: North Dakota Supreme CourtCitation: 2017 ND 105 Opinion Date: April 25, 2017Judge: Daniel J. Crothers Areas of Law: Energy, Oil & Gas Law, Real Estate & Property Law Jennifer Ogren, Lisa Marie Ogren Castle and Eric Marcus Ogren appeal from a summary judgment in favor of Marlene Sandaker, Karen Walden and Marlys Rulon. In 1958 Mike and Lorene Albert conveyed a 1/8th royalty interest to each of Mike Albert's seven siblings. Mike and Lorene Albert retained the mineral interest and a 1/8th royalty interest. Each of Mike Albert's siblings owned a 1/8th royalty interest. In 2009 Sandaker, Walden and Rulon leased the property to an oil company for a 3/16th royalty interest. In 2011 an attorney prepared a drilling title opinion concluding the 1958 assignment of royalty conveyed a fractional royalty to Mike Albert's seven siblings. A second title opinion in 2012 concluded the 1958 assignment of royalty conveyed a fraction of royalty to Mike Albert's seven siblings. In 2013 the Ogrens commenced an action to quiet title to the disputed royalty interests. The parties filed cross-motions for summary judgment to resolve the interpretation of the 1958 assignment. The district court entered an order and judgment in favor of Sandaker, Walden and Rulon, determining as a matter of law the 1958 assignment conveyed a fraction of royalty. The Ogrens appealed, arguing the district court erred by granting summary judgment in favor of Sandaker, Walden and Rulon because the 1958 assignment of royalty granted a fractional royalty and not a fraction of royalty. Finding no reversible error in the district court's judgment, the Supreme Court affirmed.Read Opinion Are you a lawyer? Annotate this case.Goodall v. Monson Court: North Dakota Supreme CourtCitation: 2017 ND 92 Opinion Date: April 25, 2017Judge: Lisa K. Fair McEvers Areas of Law: Energy, Oil & Gas Law, Real Estate & Property Law Charles W.H. Monson, LeeAnn Tarter, and KayCee Williams ("the Monsons") appealed a district court judgment reforming a deed executed in 1980 and quieting title in favor of Steve Goodall, Robert Goodall, Anne Stout, Joanne Quale, and Darrel Quale ("the Goodalls"). This case involved the sale of mineral rights to four tracts of land executed in one deed. In 1980, George and Dorothy Hoffman executed a deed transferring an undivided 508.26/876.26 mineral interest to Francis and Alice Goodall. Subsequent to the execution of these deeds, the Hoffmans retained a total of 508.26 mineral acres out of 876.26 total acres in the subject property. This fractional interest language in the 1980 deed is at the center of this dispute. Dorothy Hoffman died in 1985. George Hoffman died intestate in 1998. The Monsons acquired by intestate succession any mineral interests the Hoffmans retained beneath the subject property. Sometime after George Hoffman's death, members of the Monson family entered into oil and gas lease agreements with Enerplus Resources and Northern Oil and Gas, Inc. In 2013, the Goodall's filed a complaint requesting the district court quiet title in their favor. The Monsons moved for summary judgment, arguing the 1980 deed was unambiguous, the Hoffmans only transferred a fractional interest to the Goodalls, and the Monsons inherited their interests from what the Hoffmans retained in the transaction. The Goodalls claimed the deed did not reflect the parties' intentions, which was to transfer all of the Hoffmans' 508.26 mineral acres to Francis and Alice Goodall. After a hearing, the district court denied the Monsons' motion for summary judgment. After review, the Supreme Court concluded the district court did not err in admitting extrinsic evidence to support the Goodalls' argument that a mutual mistake had been made, and the district court's findings supporting reformation of the deed were not clearly erroneous.Read Opinion Are you a lawyer? Annotate this case.Dobson Bay Club II DD, LLC v. La Sonrisa De Siena, LLC Court: Arizona Supreme CourtDocket: CV-16-0029-PR Opinion Date: April 25, 2017Judge: Ann Timmer Areas of Law: Banking, Contracts, Real Estate & Property Law Canadian Imperial Bank of Commerce loaned Dobson Bay Club II DD, LLC and related entities (Dobson Bay) $28.6 million for Dobson Bay’s purchase of commercial properties. The loan was secured by a deed of trust encumbering the properties. Under the terms of a promissory note, as a consequence for any delay in payment, Dobson Bay was required to pay, in addition to regular interest, default interest and collection costs and a five percent late fee assessed on the payment amount. When Dobson Bay failed to make the required payments, La Sonrisa de Siena, LLC, which bought the note and deed of trust, noticed a trustee’s sale of the secured properties, arguing that Dobson Bay owed more than $30 million, including a nearly $1.4 million late fee. At issue during the ensuing trial was whether the note was an enforceable liquidated damages provision. The superior court concluded that the late fee was enforceable as liquidated damages. The court of appeals reversed. The Supreme Court vacated the court of appeals’ opinion and reversed the trial court’s partial summary judgment in favor of La Sonrisa on the liquidated damages claim, holding that an approximately $1.4 million late fee is unreasonable and an unenforceable penalty.Read Opinion Are you a lawyer? Annotate this case.Villani v. Seibert Court: Supreme Court of PennsylvaniaDocket: 66 MAP 2016 Opinion Date: April 26, 2017Judge: Thomas G. Saylor Areas of Law: Civil Procedure, Real Estate & Property Law The underlying litigation arose out of a land-ownership dispute between Jean Louse Villani, who was a co-plaintiff with her late husband until his death, and defendants John Seibert, Jr. and his mother, Mary Seibert (“Appellants”). Appellants prevailed in both an initial quiet title action and ensuing ejectment proceedings. During the course of this dispute, the Villanis were represented by Thomas Schneider, Esquire (“Appellee”). Appellants notified Mrs. Villani and Appellee that they intended to pursue a lawsuit for wrongful use of civil proceedings based upon Mrs. Villani’s and Appellee’s invocation of the judicial process to raise purportedly groundless claims. In November 2012, Mrs. Villani countered by commencing her own action seeking a judicial declaration vindicating her position that she did nothing wrong and bore no liability to Appellants. In this interlocutory direct appeal by permission, the issue presented was whether a legislative enactment recognizing a cause of action for wrongful use of civil proceedings infringed upon the Pennsylvania Supreme Court’s constitutionally prescribed power to regulate the practice of law, insofar as such wrongful-use actions may be advanced against attorneys. As was relevant here, Appellee contended that the statutory scheme embodying a cause of action for wrongful use of civil proceedings, the “Dragonetti Act,” was an unconstitutional incursion by the General Assembly upon the Court’s power under Article V, Section 10(c). Given this asserted defect, he claimed that attorneys should be immunized from any liability under these statutory provisions. Appellee has failed to establish that the Dragonetti Act clearly and palpably violated the Pennsylvania Constitution, or that the Supreme Court should per se immunize attorneys, as attorneys, from the application of the substantive tort principles promulgated by the political branch in the Dragonetti Act.Read Opinion Are you a lawyer? Annotate this case.Xia v. Probuilders Specialty Ins. Co. Court: Washington Supreme CourtDocket: 92436-8 Opinion Date: April 27, 2017Judge: Yu Areas of Law: Construction Law, Insurance Law, Personal Injury, Real Estate & Property Law At issue in this case was the applicability of a broad, absolute insurance pollution exclusion clause to a claim based on negligent installation of a hot water heater that led to the release of toxic levels of carbon monoxide in a residential home. Zhaoyun "Julia" Xia purchased a new home constructed by Issaquah Highlands 48 LLC. Issaquah Highlands carried a policy of commercial general liability insurance through ProBuilders. Soon after moving into her home, Xia began to feel ill. A service technician from Puget Sound Energy investigated Xia's home and discovered that an exhaust vent attached to the hot water heater had not been installed correctly and was discharging carbon monoxide directly into the confines of the basement room. The claims administrator for ProBuilders, NationsBuilders Insurance Services Inc. (NBIS), mailed a letter to Xia indicating that coverage was not available under the Issaquah Highlands policy. As a basis for its declination of coverage, NBIS rested on two exclusions under the policy: a pollution exclusion and a townhouse exclusion. NBIS refused to either defend or indemnify Issaquah Highlands for Xia's loss. When a nonpolluting event that was a covered occurrence causes toxic pollution to be released, resulting in damages, the Washington Supreme Court believed the only principled way for determining whether the damages are covered or not was to undertake an efficient proximate cause analysis. Under the facts presented here, the Court found ProBuilders Specialty Insurance Co. correctly identified the existence of an excluded polluting occurrence under the unambiguous language of its policy. However, it ignored the existence of a covered occurrence negligent installation-that was the efficient proximate cause of the claimed loss. Accordingly, coverage for this loss existed under the policy, and ProBuilders's refusal to defend its insured was in bad faith.Read Opinion Are you a lawyer? Annotate this case.County of Douglas v. Nebraska Tax Equalization & Review Commission Court: Nebraska Supreme CourtCitation: 296 Neb. 501 Opinion Date: April 27, 2017Judge: John F. Wright Areas of Law: Government & Administrative Law, Real Estate & Property Law, Tax Law At issue in this case was the adjustment of the valuation of three subclasses of residential real property in Douglas County. The Tax Equalization and Review Commission (TERC) issued an order to show cause why it should not increase the valuation of two properties by seven percent and decrease the valuation of a third property by eight percent. TERC voted to adjust the valuations. Douglas County filed a motion to reconsider, which the TERC commissioners overruled. The Supreme Court affirmed in part and reversed in part, holding (1) TERC’s order to decrease the valuation of one property by eight percent was not supported by competent evidence and was arbitrary, capricious, and unreasonable; (2) TERC’s order to increase the valuation of the other two properties was supported by competent evidence and was not arbitrary, capricious, and unreasonable; and (3) TERC did not abuse its discretion by denying Douglas County’s motion to reconsider its order.Read Opinion Are you a lawyer? Annotate this case.Erps v. Meadows Court: Supreme Court of Appeals of West VirginiaDocket: 16-0068 Opinion Date: April 27, 2017Judge: Walker Areas of Law: Contracts, Real Estate & Property Law Leslie Meadows filed a complaint against William Erps claiming that Erps owed he money from several real estate projects that she shared with him. For purposes of appeal, Meadows’s claims involved two of those transactions with Erps: (1) claims related to the purchase of, improvements to, and sale of the Sutphin property; and (2) claims related to the financing for the Twiford apartments. The circuit court awarded judgment to Meadows in the amount of $18,675 with respect to the Sutphin property and $67,000 for the Twiford apartments, for a total sum of $85,675. The Supreme Court reversed in part, holding (1) the circuit court’s award of judgment of $18,675 to Meadows as an abuse of discretion; and (2) the circuit court’s award of $67,000 was an abuse of discretion, and the circuit court’s award of judgment on the Twiford apartments is hereby reduced to $30,000. Remanded with directions to vacate the judgment for Meadows on the Sutphin property and to enter judgment for Meadows on the Twiford apartments in the amount of $30,000.Read Opinion Are you a lawyer? Annotate this case.
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Thanks!
Curtis D. Harris, BS, CGREA, REB
Associate Degree in Architecture, LACCBachelor of Science in Real Estate, CSULA
State Certified General Appraiser
Real Estate Broker
ASTM E-2018 Commercial Real Estate Inspector
HUD 203k Consultant
HUD/FHA Real Estate Appraiser/Reviewer
FannieMae REO ConsultantCTAC LEED-GREEN Certificate The Harris Company, Forensic Appraisers and Real Estate Consultants
*PIRS/Harris Company and the Science of Real Estate-Partners Since 1984*630 North Sepulveda Boulevard, Suite 9A
El Segundo, CA. 90245
310-337-1973 Office
310-251-3959 CellWebSite: http://www.harriscompanyrec.com Resume: http://www.harriscompanyrec.com/rESUME2011.pdf Commercial Appraiser Blog: http://commercialappraiser.typepad.com/blog/ IT'S THE LAW-Designation Discrimination is Illegal [FIRREA, Sec. 564.6]: Professional Association Membership: "A State Certified General Appraiser may not be excluded from consideration for an assignment for a federally related transaction by virtue of membership or lack of membership in any particular appraisal organization," including the appraisal institute. http://www.ofi.state.la.us/re-otspart565.pdf CONFIDENTIALITY/PRIVILEGE NOTICE: This transmission and any attachments are intended solely for the addressee. The information contained in this transmission is confidential in nature and protected from further use or disclosure under U.S. Pub. L. 106-102, 113 U.S. Stat. 1338 (1999), and may be subject to consultant/appraiser-client or other legal privilege. Your use or disclosure of this information for any purpose other than that intended by its transmittal is strictly prohibited and may subject you to fines and/or penalties under federal and state law. If you are not the intended recipient of this transmission, please destroy all copies received and confirm destruction to the sender via return transmittal.
From: Real Estate & Property Law - Justia Weekly Opinion Summaries [mailto:[email protected]] On Behalf Of Real Estate & Property Law - Justia Weekly Opinion Summaries
Sent: Friday, 28 April, 2017 7:04 AM
To: [email protected]
Subject: Latest 13 Cases This Week: FV-I, Inc. v. Kallevig (Kansas Supreme Court), Nautilus, Inc. v. Yang (Cal. Ct. App.), Fletcher v. United States (10th ...
Free Real Estate & Property Law case summaries from Justia.
If you are unable to see this message, click here to view it in a web browser.Real Estate & Property Law
April 28, 2017
Table of ContentsFV-I, Inc. v. KallevigBanking, Real Estate & Property Law Kansas Supreme CourtNautilus, Inc. v. YangReal Estate & Property Law California Courts of AppealFletcher v. United StatesEnergy, Oil & Gas Law, Government & Administrative Law, Native American Law, Real Estate & Property Law U.S. Court of Appeals for the Tenth CircuitMarina Pacifica Homeowners Assoc. v. Southern California Financial Corp.Contracts, Real Estate & Property Law California Courts of AppealBlack Stone Minerals Co. v. BrokawReal Estate & Property Law North Dakota Supreme CourtEstate of NohleCivil Procedure, Trusts & Estates, Real Estate & Property Law North Dakota Supreme CourtOgren v. SandakerEnergy, Oil & Gas Law, Real Estate & Property Law North Dakota Supreme CourtGoodall v. MonsonEnergy, Oil & Gas Law, Real Estate & Property Law North Dakota Supreme CourtDobson Bay Club II DD, LLC v. La Sonrisa De Siena, LLCBanking, Contracts, Real Estate & Property Law Arizona Supreme CourtVillani v. SeibertCivil Procedure, Real Estate & Property Law Supreme Court of PennsylvaniaXia v. Probuilders Specialty Ins. Co.Construction Law, Insurance Law, Personal Injury, Real Estate & Property Law Washington Supreme CourtCounty of Douglas v. Nebraska Tax Equalization & Review CommissionGovernment & Administrative Law, Real Estate & Property Law, Tax Law Nebraska Supreme CourtErps v. MeadowsContracts, Real Estate & Property Law Supreme Court of Appeals of West Virginia
New on VerdictLegal Analysis and CommentaryMr. No-Government President Discovers the Government MARCI A. HAMILTON Marci A. Hamilton, a Fox Distinguished Scholar in the Fox Leadership Program at the University of Pennsylvania, describes how the separation of powers built into U.S. democracy is working as it should to prevent abuses of power by, at this time, the executive.Read More
Real Estate & Property Law OpinionsFV-I, Inc. v. Kallevig Court: Kansas Supreme CourtDocket: 111235 Opinion Date: April 21, 2017Judge: Eric S. Rosen Areas of Law: Banking, Real Estate & Property Law This case arose from a mortgage foreclosure petition filed by FV-I, Inc. The dispute in this case was between FV-I and Bank of the Prairie (BOP), a bank with junior mortgages on the same property. The parties agreed to sell the property and place the proceeds in escrow pending resolution of this case. Summary judgment was initially granted in favor of BOP. The Court of Appeals reversed and remanded for a trial to determine whether FV-I had possession of the promissory note underlying the mortgage at the time it filed the mortgage foreclosure. After a trial, the district court concluded that FV-I lacked standing to file the petition because it did not have possession of the original note prior to filing its petition and that BOP’s mortgages were superior to FV-I’s mortgage. The Court of Appeals affirmed. The Supreme Court reversed, holding that evidentiary rulings excluding endorsements on the promissory note require a remand for a rehearing regarding standing and the panel’s priority determination. Remanded.Read Opinion Are you a lawyer? Annotate this case.Nautilus, Inc. v. Yang Court: California Courts of AppealDocket: G051956 (Fourth Appellate District) Opinion Date: April 21, 2017Judge: Richard D. Fybel Areas of Law: Real Estate & Property Law Nautilus, Inc. obtained a judgment against Stanley Kuo Hua Yang, and recorded an abstract of judgment against real property on which Stanley and his brother, Peter Chun Hua Yang, held title. Stanley and Peter transferred title on the property to their father, Chao Chen Yang, who obtained a reverse mortgage loan on the property from Security One Lending. In its title search, the title insurance company missed Nautilus’s abstract of judgment when the reverse mortgage loan funded. Stanley’s transfer of the property to Chao Chen was a fraudulent conveyance under the Uniform Fraudulent Transfer Act (UFTA). Nautilus sued Stanley, Peter, and Chao Chen. Nautilus also sued Urban Financial Group, Inc., which bought the mortgage from Security One, for damages resulting from the fraudulent conveyance from Stanley to Chao Chen. Following a bench trial, the court found that Security One and Urban Financial had acted in good faith, and could not be liable to Nautilus. Finding no reversible error in that judgment, the Court of Appeal affirmed: the trial court misapplied the burden of proof in connection with the good faith defense. "We publish our opinion because of our analysis of the requirements of the good faith defense. Some cases have held that a transferee cannot avail itself of the good faith defense if the transferee had fraudulent intent, colluded with a person who was engaged in a fraudulent conveyance, or actively participated in a fraudulent conveyance. . . . After analyzing those state and federal cases, we hold a transferee cannot benefit from the good faith defense if that transferee had fraudulent intent, colluded with a person who was engaged in the fraudulent conveyance, actively participated in the fraudulent conveyance, or had actual knowledge of facts showing knowledge of the transferor’s fraudulent intent."Read Opinion Are you a lawyer? Annotate this case.Fletcher v. United States Court: U.S. Court of Appeals for the Tenth CircuitDocket: 16-5050 Opinion Date: April 21, 2017Judge: Paul Joseph Kelly, Jr. Areas of Law: Energy, Oil & Gas Law, Government & Administrative Law, Native American Law, Real Estate & Property Law Plaintiffs-Appellants, a certified class of Osage tribal members who owned headrights, appealed the district court’s accounting order. Plaintiffs alleged that the government was improperly distributing royalties to non-Osage tribal members, which diluted the royalties for the Osage tribal members, the rightful headright owners. The complaint attributed this misdistribution to the government’s mismanagement of the trust assets and the government’s failure to perform an accounting. Thus, Plaintiffs sought to compel the government to perform an accounting and to prospectively restrict royalty payments to Osage tribal members and their heirs. The district court dismissed Plaintiffs’ accounting claim because it found that the applicable statute only required the government to account for deposits, not withdrawals, and that such an accounting would not support Plaintiffs’ misdistribution claim. After review, the Tenth Circuit could not say the district court abused its discretion. "The accounting the district court fashioned will certainly inform Plaintiffs of the trust receipts and disbursements and to whom those disbursements were made."Read Opinion Are you a lawyer? Annotate this case.Marina Pacifica Homeowners Assoc. v. Southern California Financial Corp. Court: California Courts of AppealDocket: B270580 (Second Appellate District) Opinion Date: April 24, 2017Judge: Elizabeth A. Grimes Areas of Law: Contracts, Real Estate & Property Law In Marina Pacifica Homeowners Assn. v. Southern California Financial Corp., this court determined that a monthly "assignment fee," payable by individual condominium unit owners to the developers of the condominium project, was properly collectible under those statutory provisions. On appeal, the Association challenged the trial court's judgment determining the amended amounts owing from unit owners to the developers' successor in interest, Southern California, for the assignment fee. The court need not decide whether it could properly reconsider its decision in Marina Pacifica I, because the amended statute and its legislative history demonstrate that the Legislature intended in any event to permit the Marina Pacifica I assignment fees to remain in place. Accordingly, the court affirmed the judgment.Read Opinion Are you a lawyer? Annotate this case.Black Stone Minerals Co. v. Brokaw Court: North Dakota Supreme CourtCitation: 2017 ND 110 Opinion Date: April 25, 2017Judge: Tufte Areas of Law: Real Estate & Property Law Missouri River Royalty Corporation and Bauer Family LLP appeal a district court's order granting summary judgment to the defendants, most of whom are members of the Brokaw family (collectively "Brokaw"). In 1958, Lyman Brokaw conveyed "an undivided full interest" in the minerals in and under the property at issue here to North American Royalties Inc. ("North American"). Later that year, North American conveyed an undivided one-half interest in the minerals to Claud Hamill. Over the next fifty years, North American transferred other fractional interests to various persons and entities. By the time of this action, Plaintiffs alleged the ownership proportions of the 160 mineral acres were as follows: The Hamill Foundation - 50%; Black Stone Minerals Co. - 25%; Missouri River Royalty Corp. - 18.75%; and Bauer Family LLP - 6.25%. (Appellants Missouri River Royalty Corp. and Bauer Family LLP were referred to as "North American Successors.") North American Successors claim ownership through North American and initiated this action against Brokaw to quiet title in the minerals. Missouri River Royalty Corporation and Bauer Family LLP appeal a district court's order granting summary judgment to the defendants, most of whom are members of the Brokaw family (collectively "Brokaw"). On cross motions for summary judgment, the district court quieted title to certain minerals in favor of Brokaw. The Supreme Court affirmed the district court except to the extent the district court vested title in North American. As to that, the Supreme Court reversed the denial of the motion to correct judgment and remand for entry of a corrected judgment vesting title of the one half-interest not held by Brokaw only in North American Royalties Inc.'s successors in interest.Read Opinion Are you a lawyer? Annotate this case.Estate of Nohle Court: North Dakota Supreme CourtCitation: 2017 ND 100 Opinion Date: April 25, 2017Judge: Tufte Areas of Law: Civil Procedure, Trusts & Estates, Real Estate & Property Law Dori Lentz appealed an order and judgment denying her request to modify the distribution decrees of the Estate of Charlotte C. Nohle and ordering her to pay the estate's attorney's fees. After review, the Supreme Court affirmed, concluding the district court did not abuse its discretion by denying the requested modification or by awarding attorney's fees.Read Opinion Are you a lawyer? Annotate this case.Ogren v. Sandaker Court: North Dakota Supreme CourtCitation: 2017 ND 105 Opinion Date: April 25, 2017Judge: Daniel J. Crothers Areas of Law: Energy, Oil & Gas Law, Real Estate & Property Law Jennifer Ogren, Lisa Marie Ogren Castle and Eric Marcus Ogren appeal from a summary judgment in favor of Marlene Sandaker, Karen Walden and Marlys Rulon. In 1958 Mike and Lorene Albert conveyed a 1/8th royalty interest to each of Mike Albert's seven siblings. Mike and Lorene Albert retained the mineral interest and a 1/8th royalty interest. Each of Mike Albert's siblings owned a 1/8th royalty interest. In 2009 Sandaker, Walden and Rulon leased the property to an oil company for a 3/16th royalty interest. In 2011 an attorney prepared a drilling title opinion concluding the 1958 assignment of royalty conveyed a fractional royalty to Mike Albert's seven siblings. A second title opinion in 2012 concluded the 1958 assignment of royalty conveyed a fraction of royalty to Mike Albert's seven siblings. In 2013 the Ogrens commenced an action to quiet title to the disputed royalty interests. The parties filed cross-motions for summary judgment to resolve the interpretation of the 1958 assignment. The district court entered an order and judgment in favor of Sandaker, Walden and Rulon, determining as a matter of law the 1958 assignment conveyed a fraction of royalty. The Ogrens appealed, arguing the district court erred by granting summary judgment in favor of Sandaker, Walden and Rulon because the 1958 assignment of royalty granted a fractional royalty and not a fraction of royalty. Finding no reversible error in the district court's judgment, the Supreme Court affirmed.Read Opinion Are you a lawyer? Annotate this case.Goodall v. Monson Court: North Dakota Supreme CourtCitation: 2017 ND 92 Opinion Date: April 25, 2017Judge: Lisa K. Fair McEvers Areas of Law: Energy, Oil & Gas Law, Real Estate & Property Law Charles W.H. Monson, LeeAnn Tarter, and KayCee Williams ("the Monsons") appealed a district court judgment reforming a deed executed in 1980 and quieting title in favor of Steve Goodall, Robert Goodall, Anne Stout, Joanne Quale, and Darrel Quale ("the Goodalls"). This case involved the sale of mineral rights to four tracts of land executed in one deed. In 1980, George and Dorothy Hoffman executed a deed transferring an undivided 508.26/876.26 mineral interest to Francis and Alice Goodall. Subsequent to the execution of these deeds, the Hoffmans retained a total of 508.26 mineral acres out of 876.26 total acres in the subject property. This fractional interest language in the 1980 deed is at the center of this dispute. Dorothy Hoffman died in 1985. George Hoffman died intestate in 1998. The Monsons acquired by intestate succession any mineral interests the Hoffmans retained beneath the subject property. Sometime after George Hoffman's death, members of the Monson family entered into oil and gas lease agreements with Enerplus Resources and Northern Oil and Gas, Inc. In 2013, the Goodall's filed a complaint requesting the district court quiet title in their favor. The Monsons moved for summary judgment, arguing the 1980 deed was unambiguous, the Hoffmans only transferred a fractional interest to the Goodalls, and the Monsons inherited their interests from what the Hoffmans retained in the transaction. The Goodalls claimed the deed did not reflect the parties' intentions, which was to transfer all of the Hoffmans' 508.26 mineral acres to Francis and Alice Goodall. After a hearing, the district court denied the Monsons' motion for summary judgment. After review, the Supreme Court concluded the district court did not err in admitting extrinsic evidence to support the Goodalls' argument that a mutual mistake had been made, and the district court's findings supporting reformation of the deed were not clearly erroneous.Read Opinion Are you a lawyer? Annotate this case.Dobson Bay Club II DD, LLC v. La Sonrisa De Siena, LLC Court: Arizona Supreme CourtDocket: CV-16-0029-PR Opinion Date: April 25, 2017Judge: Ann Timmer Areas of Law: Banking, Contracts, Real Estate & Property Law Canadian Imperial Bank of Commerce loaned Dobson Bay Club II DD, LLC and related entities (Dobson Bay) $28.6 million for Dobson Bay’s purchase of commercial properties. The loan was secured by a deed of trust encumbering the properties. Under the terms of a promissory note, as a consequence for any delay in payment, Dobson Bay was required to pay, in addition to regular interest, default interest and collection costs and a five percent late fee assessed on the payment amount. When Dobson Bay failed to make the required payments, La Sonrisa de Siena, LLC, which bought the note and deed of trust, noticed a trustee’s sale of the secured properties, arguing that Dobson Bay owed more than $30 million, including a nearly $1.4 million late fee. At issue during the ensuing trial was whether the note was an enforceable liquidated damages provision. The superior court concluded that the late fee was enforceable as liquidated damages. The court of appeals reversed. The Supreme Court vacated the court of appeals’ opinion and reversed the trial court’s partial summary judgment in favor of La Sonrisa on the liquidated damages claim, holding that an approximately $1.4 million late fee is unreasonable and an unenforceable penalty.Read Opinion Are you a lawyer? Annotate this case.Villani v. Seibert Court: Supreme Court of PennsylvaniaDocket: 66 MAP 2016 Opinion Date: April 26, 2017Judge: Thomas G. Saylor Areas of Law: Civil Procedure, Real Estate & Property Law The underlying litigation arose out of a land-ownership dispute between Jean Louse Villani, who was a co-plaintiff with her late husband until his death, and defendants John Seibert, Jr. and his mother, Mary Seibert (“Appellants”). Appellants prevailed in both an initial quiet title action and ensuing ejectment proceedings. During the course of this dispute, the Villanis were represented by Thomas Schneider, Esquire (“Appellee”). Appellants notified Mrs. Villani and Appellee that they intended to pursue a lawsuit for wrongful use of civil proceedings based upon Mrs. Villani’s and Appellee’s invocation of the judicial process to raise purportedly groundless claims. In November 2012, Mrs. Villani countered by commencing her own action seeking a judicial declaration vindicating her position that she did nothing wrong and bore no liability to Appellants. In this interlocutory direct appeal by permission, the issue presented was whether a legislative enactment recognizing a cause of action for wrongful use of civil proceedings infringed upon the Pennsylvania Supreme Court’s constitutionally prescribed power to regulate the practice of law, insofar as such wrongful-use actions may be advanced against attorneys. As was relevant here, Appellee contended that the statutory scheme embodying a cause of action for wrongful use of civil proceedings, the “Dragonetti Act,” was an unconstitutional incursion by the General Assembly upon the Court’s power under Article V, Section 10(c). Given this asserted defect, he claimed that attorneys should be immunized from any liability under these statutory provisions. Appellee has failed to establish that the Dragonetti Act clearly and palpably violated the Pennsylvania Constitution, or that the Supreme Court should per se immunize attorneys, as attorneys, from the application of the substantive tort principles promulgated by the political branch in the Dragonetti Act.Read Opinion Are you a lawyer? Annotate this case.Xia v. Probuilders Specialty Ins. Co. Court: Washington Supreme CourtDocket: 92436-8 Opinion Date: April 27, 2017Judge: Yu Areas of Law: Construction Law, Insurance Law, Personal Injury, Real Estate & Property Law At issue in this case was the applicability of a broad, absolute insurance pollution exclusion clause to a claim based on negligent installation of a hot water heater that led to the release of toxic levels of carbon monoxide in a residential home. Zhaoyun "Julia" Xia purchased a new home constructed by Issaquah Highlands 48 LLC. Issaquah Highlands carried a policy of commercial general liability insurance through ProBuilders. Soon after moving into her home, Xia began to feel ill. A service technician from Puget Sound Energy investigated Xia's home and discovered that an exhaust vent attached to the hot water heater had not been installed correctly and was discharging carbon monoxide directly into the confines of the basement room. The claims administrator for ProBuilders, NationsBuilders Insurance Services Inc. (NBIS), mailed a letter to Xia indicating that coverage was not available under the Issaquah Highlands policy. As a basis for its declination of coverage, NBIS rested on two exclusions under the policy: a pollution exclusion and a townhouse exclusion. NBIS refused to either defend or indemnify Issaquah Highlands for Xia's loss. When a nonpolluting event that was a covered occurrence causes toxic pollution to be released, resulting in damages, the Washington Supreme Court believed the only principled way for determining whether the damages are covered or not was to undertake an efficient proximate cause analysis. Under the facts presented here, the Court found ProBuilders Specialty Insurance Co. correctly identified the existence of an excluded polluting occurrence under the unambiguous language of its policy. However, it ignored the existence of a covered occurrence negligent installation-that was the efficient proximate cause of the claimed loss. Accordingly, coverage for this loss existed under the policy, and ProBuilders's refusal to defend its insured was in bad faith.Read Opinion Are you a lawyer? Annotate this case.County of Douglas v. Nebraska Tax Equalization & Review Commission Court: Nebraska Supreme CourtCitation: 296 Neb. 501 Opinion Date: April 27, 2017Judge: John F. Wright Areas of Law: Government & Administrative Law, Real Estate & Property Law, Tax Law At issue in this case was the adjustment of the valuation of three subclasses of residential real property in Douglas County. The Tax Equalization and Review Commission (TERC) issued an order to show cause why it should not increase the valuation of two properties by seven percent and decrease the valuation of a third property by eight percent. TERC voted to adjust the valuations. Douglas County filed a motion to reconsider, which the TERC commissioners overruled. The Supreme Court affirmed in part and reversed in part, holding (1) TERC’s order to decrease the valuation of one property by eight percent was not supported by competent evidence and was arbitrary, capricious, and unreasonable; (2) TERC’s order to increase the valuation of the other two properties was supported by competent evidence and was not arbitrary, capricious, and unreasonable; and (3) TERC did not abuse its discretion by denying Douglas County’s motion to reconsider its order.Read Opinion Are you a lawyer? Annotate this case.Erps v. Meadows Court: Supreme Court of Appeals of West VirginiaDocket: 16-0068 Opinion Date: April 27, 2017Judge: Walker Areas of Law: Contracts, Real Estate & Property Law Leslie Meadows filed a complaint against William Erps claiming that Erps owed he money from several real estate projects that she shared with him. For purposes of appeal, Meadows’s claims involved two of those transactions with Erps: (1) claims related to the purchase of, improvements to, and sale of the Sutphin property; and (2) claims related to the financing for the Twiford apartments. The circuit court awarded judgment to Meadows in the amount of $18,675 with respect to the Sutphin property and $67,000 for the Twiford apartments, for a total sum of $85,675. The Supreme Court reversed in part, holding (1) the circuit court’s award of judgment of $18,675 to Meadows as an abuse of discretion; and (2) the circuit court’s award of $67,000 was an abuse of discretion, and the circuit court’s award of judgment on the Twiford apartments is hereby reduced to $30,000. Remanded with directions to vacate the judgment for Meadows on the Sutphin property and to enter judgment for Meadows on the Twiford apartments in the amount of $30,000.Read Opinion Are you a lawyer? Annotate this case.
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