Bringing Home the Supply Chain

SAMUEL ESTREICHER, JONATHAN F. HARRIS

NYU law professors Samuel Estreicher and Jonathan F. Harris describe how the COVID-19 pandemic is forcing the United States to confront the problem of unchecked globalization. Estreicher and Harris argue that once the pandemic subsides, U.S. policymakers should, as a matter of national security, mandate that a minimum percentage of essential supplies be manufactured domestically.

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Unconstitutional Chaos: Abortion in the Time of COVID-19

JOANNA L. GROSSMAN, MARY ZIEGLER

SMU Dedman School of Law professor Joanna L. Grossman and Florida State University law professor Mary Ziegler discuss the abortion bans implemented in several states in response to the COVID-19 pandemic. Grossman and Ziegler explain why the bans are constitutional and comment on the connection between the legal challenges to those bans and the broader fight over abortion rights.

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Hoffman Properties II, L.P. v. Commissioner of Internal Revenue

Court: US Court of Appeals for the Sixth Circuit

Docket: 19-1831

Opinion Date: April 14, 2020

Judge: Thapar

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

Hoffman owns the historic Tremaine Building in Cleveland, Ohio. Over a decade ago, Hoffman donated an easement in the façade of the building and certain airspace restrictions associated with the building to the American Association of Historic Preservation (AAHP). Hoffman agreed not to alter the historic character of the façade or to build in the airspace above or next to the building—subject to certain conditions. Hoffman then sought a $15 million tax deduction for its donation of a “qualified conservation contribution,” I.R.C. 170(f)(3)(B)(iii). The IRS and Tax Court concluded that Hoffman was not entitled to a deduction because the donation was not “exclusively for conservation purposes.” The Sixth Circuit affirmed. To be deductible, the donation must protect the conservation purposes “in perpetuity,” I.R.C. 170(h)(5)(A) and include “legally enforceable restrictions” that will prevent the donor from using its retained interest in the property in a way “inconsistent with the [donation’s] conservation purposes.” The donation agreement gives Hoffman the right to propose changes to the facade or airspace, after which AAHP has a 45-day window in which to prevent those changes. If the organization misses that window—for whatever reason—it loses the ability to stop the change. The provision violates the “perpetuity” requirement.

Seater v Estate of Fred L. Seater

Court: Alaska Supreme Court

Docket: S-17174

Opinion Date: April 10, 2020

Judge: Joel H. Bolger

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

In the 1940s, Fred E.W. and Clara Seater acquired a roughly five-acre parcel located along the Nikiski Bay beach in the Cook Inlet region, referred to as Lot 9. In 1956, following Fred E.W.’s death, Clara transferred Lot 9 to her sons Ronald Seater and Fred L. Seater, as tenants in common. Fred L. died in 1979. His widow, Lee Seater, as executor of his estate, conveyed his share in Lot 9 to herself. Ronald filed for partition of Lot 9 in January 2010. In February 2012, a superior court issued a partition order severing Ronald and Lee’s tenancy in common. he partition made a straight-line division in Lot 9 to create a northern “Lot 1” and a southern “Lot 2” of “reasonably equal 'value.’ ” Lee was granted the northern “Lot 1” and Ronald was granted the southern “Lot 2.” In April 2012 Ronald requested the use of an old access trail that crossed Lot 1. In October the superior court granted Ronald “an express appurtenant easement by necessity over Lot 1 for ingress and egress via the trail/road into the northern boundary of Lot 1.” In June 2014 Lee requested that “reciprocal easements for ingress and egress be established between Lot 1 and Lot 2.” In September 2015 the superior court entered a decision granting Lee’s request. In July 2016 Lee moved to enforce the September 2015 decision. She alleged that Ronald was placing boulders on or around the easement to frustrate her access. Ronald claims that in response he “installed boulder fences . . . along a 10-foot wide corridor centered on the 'diagonal cut’ on Lot 2, in order to mark the boundary between Lots 1 and 2; identify the location of the 'diagonal cut[’;] deter trespassers (including the Lee Seater family); and prevent more erosion on Lot 2.” In July 2017 Lee filed an enforcement motion alleging that Ronald continued to frustrate her access to the easement. Ronald appealed the modification of the partition, and the subsequent related enforcement orders. The Alaska Supreme Court concluded Ronald's appeal was untimely with respect to all but the most recent enforcement order, which contained an erroneous interpretation of a term used in prior orders. The matter was remanded for the superior court to rectify that mistake.

Noel v. City of Rigby

Court: Idaho Supreme Court - Civil

Docket: 45425

Opinion Date: April 16, 2020

Judge: Stegner

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

Nine-year-old girl Shaeley Noel was seriously injured while playing on playground equipment owned by the City of Rigby (City) and located in the City’s South Park. Shaeley and her parents (collectively the Noels) filed suit in district court alleging willful and wanton conduct by the City in the construction and/or maintenance of its playground equipment. The City claimed the park was closed for winter at the time Shaeley was injured. A jury rendered a verdict in favor of the City when it found that the City did not owe a duty to Shaeley. The Noels filed a motion for a new trial, which the district court granted. The City appealed the district court’s decision to grant a new trial, as well as the district court’s decisions to deny the City’s motion for a directed verdict and the City’s motion to exclude the Noels’ expert witness. The Noels cross-appealed, arguing the trial court erred by: (1) rejecting of evidence of Shaeley’s unadjusted medical bills; (2) preventing the Noels’ expert witness from testifying regarding the City’s purported willful and wanton conduct; (3) allowing a jury instruction regarding comparative negligence; and (4) admitting of evidence regarding the seasonal closure of the park. The Idaho Supreme Court affirmed the district court decisions with regard to: (1) the City’s motion for a directed verdict; (2) the Noels’ motion for a new trial; (3) the Noels’ expert testifying; (4) the jury instruction; and (5) admission of evidence of the park closure. Additionally, the Court reversed the district court with respect to: (1) the Noels introducing Shaeley’s unadjusted medical bills; and (2) preclusion of the Noels’ expert from testifying that the City engaged in willful and wanton conduct. As a result, the matter was remanded for a new trial.

In re Estate of Kendall W. Hatch Jr.

Court: Maine Supreme Judicial Court

Citation: 2020 ME 46

Opinion Date: April 14, 2020

Judge: Joseph Jabar

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

The Supreme Judicial Court affirmed the judgment of the probate court interpreting a divorce judgment and ruling that certain real property once held in joint tenancy by Karen Hatch and Kendall Hatch, was an assets of Kendall's estate, holding that the probate court's decision represented a reasonable interpretation of the underlying divorce judgment. Karen appealed the probate court's judgment, arguing that the court erred in holding that the joint tenancy was severed and that Kendell was the sole owner of the property at issue at the time of his death. Rather, Karen contended, the property was still held in joint tenancy at the time of Kendall's death and that she became sole owner by right of survivorship when he died. The Supreme Judicial Court affirmed, holding that the probate court did not err in interpreting the divorce judgment and subsequent orders of the district court in concluding that title to the property vested in Kendall before his death and that the joint tenancy was severed.

Wilmington Savings Fund Society, FSB v. Abildgaard

Court: Maine Supreme Judicial Court

Citation: 2020 ME 48

Opinion Date: April 14, 2020

Judge: Andrew M. Mead

Areas of Law: Real Estate & Property Law

The Supreme Judicial Court affirmed the judgment of the superior court in favor of David Abildgaard following a trial on the foreclosure complaint filed by Wilmington Savings Fund Society, FSB, as Trustee for RPMLT 2014-1 Trust, Series 2014-1, holding that Wilmington failed to present evidence at trial of all necessary elements of its foreclosure claim. Abildgaard executed and delivered a promissory note and allonge in favor of Wilmington secured by a mortgage on real property located in Portland. Over a decade later, after Abildgaard defaulted on the loan, Wilmington filed a foreclosure complaint. After a bench trial, the court entered judgment for Abildgaard. The Supreme Judicial Court affirmed, holding that Wilmington failed to present evidence to establish all required elements of its foreclosure claim, and therefore, Abildgaard was entitled to a judgment on the merits.

Peak v. Cohee

Court: Supreme Court of Mississippi

Citation: 2019-IA-00045-SCT

Opinion Date: April 16, 2020

Judge: Maxwell

Areas of Law: Labor & Employment Law, Personal Injury, Real Estate & Property Law

An insurance adjuster was injured while performing the specific task he was hired to do: identify and distinguish preexisting roof damage from storm damage. While the adjuster recovered workers’ compensation benefits, he also filed suit against the homeowner for failing to make the premises safe and for not warning him about the roof’s condition. The homeowner filed two summary judgment motions, arguing the "intimately connected" doctrine barred the adjuster’s suit as a matter of law. After review, the Mississippi Supreme Court found the trial court erred by denying summary judgment. "The homeowner exercised no control over the adjuster. And absent some exercise of control over a contractor, Mississippi law does not impose liability on property owners for injuries suffered by independent contractors arising from or intimately connected to the work they were contracted to perform." The Court therefore reversed the trial court's denial fo summary judgment and rendered judgment I the homeowner's favor.

HBI, LLC v. Barnette

Court: Nebraska Supreme Court

Citation: 305 Neb. 457

Opinion Date: April 10, 2020

Judge: Michael G. Heavican

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

The Supreme Court affirmed the decision of the district court granting summary judgment in favor of Appellee and quieting title on certain property after issuance of a tax deed, holding that Appellee complied with the statutory notice requirements for obtaining a tax deed and that the statutory notice requirements are constitutionally sufficient. On appeal, Appellant argued, among other things, that the district court erred in finding that the notice provided complied with Nebraska statutes and in not finding the Nebraska tax sale statutory scheme violated the federal and state constitutions. The Supreme Court affirmed, holding (1) because the statutory notice requirements are reasonably calculated to apprise a property owner of a tax certificate holder's intent to apply for a tax deed, they are constitutionally sufficient; and (2) Appellant failed to meet his burden of establishing that the tax deed was invalid.

TransCanada Keystone Pipeline v. Tanderup

Court: Nebraska Supreme Court

Citation: 305 Neb. 493

Opinion Date: April 10, 2020

Judge: Freudenberg

Areas of Law: Energy, Oil & Gas Law, Real Estate & Property Law

In these appeals for a series of condemnation proceedings initiated by TransCanada Keystone Pipeline, LP, the Supreme Court affirmed the judgment of the district court finding that the county court plainly erred by entering a judgment on remand regarding the issue of attorney fees without holding an evidentiary hearing, holding that the county court should have considered all relevant evidence before making its determination on the motions for attorney fees. Condemnation proceedings took place in several counties through which TransCanada planned to construct an oil pipeline, including Antelope County. TransCanada ultimately voluntarily dismissed all of its condemnation actions without prejudice. This appeal concerned the motions of the condemnees in Antelope County for an award of attorney fees. The county court originally found in favor of the condemnees, but the district court reversed the award and remanded the matter for a "rehearing on the merits." Ultimately, the county court concluded that a rehearing was unnecessary and denied the condemnees their request for attorney fees. The district court reversed and remanded the matter with instructions to conduct an evidentiary hearing. The Supreme Court affirmed, holding that the district court was correct to find plain error and to remand with instructions for the county court to hold an evidentiary hearing.

Reynolds v. Tufenkjian

Court: Supreme Court of Nevada

Citation: 136 Nev. Adv. Op. No. 19

Opinion Date: April 9, 2020

Judge: Silver

Areas of Law: Contracts, Family Law, Real Estate & Property Law

In this case involving the extent to which a judgment debtor's rights of action are subject to execution to satisfy a judgment the Supreme Court held that a judgment debtor's claims that are unassignable cannot be purchased at an execution sale. Respondents filed a motion to substitute themselves in place of Appellants and to voluntarily dismiss this appeal because they purchased Appellants' rights and interests in the underlying action at a judgment execution sale. The Supreme Court denied the motion in part and granted the motion in part, holding (1) because Appellants' claims for fraud and elder exploitation were personal in nature, they were not assignable and not subject to execution at a sheriff's sale, and therefore, Respondents did not purchase the rights to these claims at the execution sale; and (2) Appellants' claims of negligent misrepresentation and breach of contract were assignable and subject to execution, and therefore, this appeal is dismissed as to these claims.

Clark v. Buttonwoods Beach Ass'n

Court: Rhode Island Supreme Court

Docket: 18-17

Opinion Date: April 15, 2020

Judge: Paul A. Suttell

Areas of Law: Real Estate & Property Law

In this property dispute, the Supreme Court affirmed the judgment of the superior court in favor of Defendant, holding that the trial justice did not misconceive or misconstrue the evidence at trial or err as a matter of law in concluding that Plaintiffs had not satisfied the elements for claiming the disputed property by adverse possession. In 2009, when Plaintiffs purchased their property in Buttonwoods, the believed they had also purchased the waterfront lot across the street from their home. Two years later, Plaintiffs commissioned a property survey showing that part of the land described in their deed was also included in an eighty-foot-wide public way owned by the Buttonwoods Beach Association (BBA). Plaintiffs brought this lawsuit alleging that they owned the property by adverse possession and acquiescence. The superior court entered judgment for the BBA. The Supreme Court affirmed, holding that the trial justice did not err in concluding that Plaintiffs had not demonstrated ownership of the entire waterfront lot by adverse possession.