Joe, Joey, Joe-Baby, Sexist: Where’s Your Imposter Syndrome?

JOANNA L. GROSSMAN

SMU Dedman School of Law professor Joanna L. Grossman responds to a recent Wall Street Journal op-ed criticizing soon-to-be First Lady Jill Biden for using the academic title she earned. Professor Grossman dissects the op-ed, penned by a retired lecturer at Northwestern University, and explains the deep and pervasive sexism behind it.

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Donovan v. Maresca

Court: US Court of Appeals for the Second Circuit

Docket: 19-3331

Opinion Date: December 14, 2020

Judge: Robert A. Katzmann

Areas of Law: Bankruptcy, Real Estate & Property Law

The Second Circuit affirmed the district court's judgment affirming the bankruptcy court's order granting debtor's motion to avoid a judicial lien. Debtor seeks, pursuant to 11 U.S.C. 522(d)(1) and (f)(1)(A), to exempt her interest in, and avoid a judicial lien upon, a property that her dependent son uses as a non-primary residence. The court held that the term "residence" in the so-called homestead exemption of section 522(d)(1) includes both primary and nonprimary residences. In this case, the ordinary meaning of the word "residence" does not exclude non-primary residences. Furthermore, Congress's deliberate choice of terminology, the text of the statute, and the legislative history weigh in favor of the court's conclusion.

Cohen v. Gilmore

Court: US Court of Appeals for the Fifth Circuit

Docket: 19-20152

Opinion Date: December 15, 2020

Judge: James Earl Graves, Jr.

Areas of Law: Real Estate & Property Law

Appellant alleged that appellee played a key role as a strawman purchaser in a fraudulent land transfer where valuable property passed from a limited partnership, A&D, to another limited partnership in appellee's control, TAFI. Before the action was removed to federal court under bankruptcy jurisdiction, a Texas state trial court granted several evidentiary objections to appellant's detriment, dismissed his claims against appellee and TAFI on summary judgment, and expunged a notice of lis pendens that appellant had placed on the property. The Fifth Circuit found that the state trial court abused its discretion in granting the evidentiary objections and granting summary judgment despite there being issues of material fact with respect to all of appellant's claims. The court also found that the controversy surrounding the state court's expungement of the notice of lis pendens is moot because the property at issue was sold to a third party months after the trial court's expungement. Accordingly, the court affirmed in part, vacated in part, and remanded for further proceedings.

Ex parte The Water Works and Sewer Board of the City of Anniston.

Court: Supreme Court of Alabama

Docket: 1190436

Opinion Date: December 11, 2020

Judge: Tommy Bryan

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

The Water Works and Sewer Board of the City of Anniston ("the Board") petitioned the Alabama Supreme Court for a writ of mandamus to direct the Calhoun Circuit Court ("the trial court") to vacate its order entering a partial summary judgment in favor of plaintiffs Betty Milner and Teresa Holiday. In 2018, plaintiffs sued the Board seeking compensatory and punitive damages based on claims of breach of contract, nuisance, continuing trespass, negligence, and wantonness. Plaintiffs alleged that in February 2016 they instructed the Board to cut off water supply to a house they owned; that plaintiffs "returned to reopen" the house in February 2018 and discovered that the water supply to the house had not been completely cut off; and, that the Board's failure to properly cut off the water supply caused severe damage to the house. The Board filed an answer that included general denials of plaintiffs' allegations and asserted a number of "affirmative defenses," including that plaintiffs' injuries were the result of the "intervening and superseding" actions of an individual or entity other than the Board or anyone under its control. Viewing the evidence before it in a light most favorable to the Board, the Supreme Court concluded that the trial court could have assigned some culpability to the Board. However, the Court determined the Board could not have known plaintiffs would initiate litigation against the Board once it was discovered that, at least from the Board's perspective, water was running to plaintiffs' house only because a third party had tampered with the cap and lock device, not because the Board had failed to properly cut off the water in 2016. Moreover, the Court concluded plaintiffs failed to demonstrate that fundamental fairness required the most severe sanction available to the trial court to impose upon the Board. Therefore, the Court determined the Board established a clear legal right to mandamus relief. The petition was granted and the writ issued.

Russell v. Man

Court: California Courts of Appeal

Docket: E072266(Fourth Appellate District)

Opinion Date: December 11, 2020

Judge: Manuel A. Ramirez

Areas of Law: Real Estate & Property Law

Cornel Man was a general contractor. With his wife Victoria, he bought a vacant lot in Big Bear Lake. Raymond and Fenella Russell owned the house next door. A “massive” pine tree stood on the property line between them. The Mans built a house on their property. They should not have been able to; under the city’s development code, almost any house on the property, no matter how configured, would be too close to the tree’s “critical root zone.” The city, however, inspected the property and approved the plans. In the course of the construction, workers digging a trench cut the roots of the tree. As a result, the tree died. The Russells filed this action against the Mans. After a bench trial, the trial court found for the Russells. The major item of the damages it awarded was $219,756.50, representing $73,265.50, which the trial court found to be the value of the tree, trebled pursuant to Civil Code section 3346. The Mans appealed, arguing: (1) Civil Code section 3346 did not apply, because the Mans injured the tree while on their own property, not while trespassing on the Russells’ property; (2) there was insufficient evidence that the Mans acted willfully and maliciously to support an award of treble damages; and (3) the trial court erred in calculating the value of the tree. The Court of Appeal agreed Civil Code section 3346 did not apply, but the Mans remained liable on a negligence theory, and only for untrebled damages. Thus, the Court did not decide the sufficiency of the evidence argument. The Court also concurred the calculation of the tree's value was erroneous and excessive; the Court found the only value supported by he evidence was $37,000. The matter was remanded for the trial court to modify its judgment.

DW Aina Le'a Development, LLC v. State Land Use Commission

Court: Supreme Court of Hawaii

Docket: SCCQ-19-0000156

Opinion Date: December 17, 2020

Judge: Mark E. Recktenwald

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

In response to a question certified to it by the United States Court of Appeals for the Ninth Circuit the Supreme Court answered that the statute of limitations for a regulatory takings claim brought under the Hawai'i Constitution is six years pursuant to the catch-all statute of limitations in Haw. Rev. Stat. 657-1(4). The underlying dispute arose from the State Land Use Commission's (LUC) reclassification in 2011 of 1,060 acres of land in South Kohala on Hawai'i Island. In 2017, DW Aina Le'a Development (DW) filed this complaint alleging that the reclassification was an unconstitutional taking because the LUC failed to compensate DW for damages resulting from the land's reclassification. The federal district court dismissed the case, applying the two-year statute of limitations found in Haw. Rev. Stat. 657-7. LW appealed, arguing that the "catch-all" six-year statute of limitations applied to the action. The Ninth Circuit certified to the question to the Supreme Court. The Supreme Court held that the statute of limitations for a takings claim under the Hawai'i Constitution is six years pursuant to Haw. Rev. Code 657-1(4).

Holcomb v. City of Bloomington

Court: Supreme Court of Indiana

Docket: 19S-PL-304

Opinion Date: December 15, 2020

Judge: Goff

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

The Supreme Court affirmed the judgment of the trial court in this declaratory judgment action against Governor Holcomb, holding that the statute passed by the legislature in 2017 stopping the City of Bloomington's proposed annexation of several areas of land and prohibiting the City from trying to annex the areas for five years is unconstitutional special legislation in violation of Ind. Const. art. IV, 23. In 2017, the Bloomington mayor announced plans for a proposed annexation of several areas of land. After the City Council adopted the initiating resolutions and Bloomington took its initial steps toward annexation, the General Assembly passed legislation codified at Ind. Code 36-4-3-11.8 cutting off Bloomington's proposed annexation and prohibiting the City from trying to annex the same areas for the next five years. The City brought this suit seeking declarations that section 11.8 constitutes unconstitutional special legislation and violates article 4, section 19's single-subject rule. The trial court declared section 11.8 unconstitutional under article 4, sections 19 and 23 of the Indiana Constitution. The Supreme Court affirmed, holding that section 11.8 constitutes impermissible special legislation.

Mississippi Sand Solutions, LLC v. Otis, et al.

Court: Supreme Court of Mississippi

Citation: 2019-CA-01103-SCT

Opinion Date: December 17, 2020

Judge: Michael K. Randolph

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

Mississippi Sand Solutions (Solutions) appealed a judgment by the Warren County Special Court of Eminent Domain denying its petition to establish a private right-of-way across lands owned by the defendants (the Fishers). Because the Mississippi Supreme Court fount the special court did not err by applying collateral estoppel to claims relating to access to Solutions’ property, judgment was affirmed. "When a party has been given voluntary access to its property over the land of another and that party continues to have access for the purposes of ingress and egress, that party cannot assert a claim under Mississippi Code Section 65-7-201 for a private road through the land of their obliging neighbor. Even without applying the doctrine of collateral estoppel, Solutions, by its own arguments and testimony of its own witnesses, demonstrated it could not make a prima facie case under this statute."

Peyton v. New York City Board of Standards & Appeals

Court: New York Court of Appeals

Citation: 2020 NY Slip Op 07662

Opinion Date: December 17, 2020

Judge: Feinman

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

The Court of Appeals upheld the decision of the Board of Standards and Appeals of the City of New York (BSA) interpreting the definition of open space within the meaning of the New York City Zoning Resolution to encompass rooftop gardens accessible to a single building's residents as long as the residents of each building on the zoning lot receive at least a proportionate share of open space, holding that the BSA's determination was not arbitrary, capricious, or contrary to law. Plaintiff commenced this N.Y. C.P.L.R. 78 proceeding asserting that BSA's interpretation of open space had no legal basis under the Zoning Resolution. Supreme Court denied the petition. The Appellate Division reversed, determining that the definition of open space unambiguously required that open space be accessible to the residents of every building on a zoning lot. The Court of Appeals reversed, holding that the BSA's application of the definition of open space to multi-owner zoning lots was not arbitrary, capricious, or contrary to law.

Kuntz v. Leiss, et al.

Court: North Dakota Supreme Court

Citation: 2020 ND 300

Opinion Date: December 17, 2020

Judge: Gerald W. VandeWalle

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

Riley Kuntz appealed the district court’s default judgment entered in his favor. Kuntz sued Ashlynn Leiss and Joseph Westbrook for trespass and theft of his cat trap. Neither Leiss nor Westbrook answered the complaint or otherwise appeared. Following an evidentiary hearing, the district court granted default judgment in favor of Kuntz. The court found a trespass and conversion of the cat trap had occurred. The court awarded Kuntz a money judgment for conversion of the cat trap, but found he did not suffer any actual damages as a result of the trespass. Kuntz argues the district court erred by denying his damages for trespass. Finding no reversible error, the North Dakota Supreme Court affirmed.

McCarvel, et al. v. Perhus, et al.

Court: North Dakota Supreme Court

Citation: 2020 ND 314

Opinion Date: December 17, 2020

Judge: Gerald W. VandeWalle

Areas of Law: Real Estate & Property Law

Following a bench trial, Kelly and Debra Perhus appealed from a district court judgment quieting title to disputed property in Kevin and Angela McCarvel. Kelly Perhus was the record title owner of the property. The court found the disputed parcel was .41 acres in size. The McCarvels owned the property adjacent to the disputed parcel and the Perhuses’ property. The McCarvels purchased their property in 2003. The trial court traced ownership of the McCarvel property back to 1992. The disputed parcel was set off from the rest of the Perhus property due to road construction predating 1992. The court found the McCarvels “maintained a dike, planted trees, mowed the grass and maintained a driveway across the disputed property.” The court ultimately held the McCarvels met their claim for adverse possession by clear and convincing evidence. It also found the McCarvels met all the elements for boundary by acquiescence. Finding no reversible error, the North Dakota Supreme Court affirmed the trial court's judgment.

Three Aces Properties v. United Rentals

Court: North Dakota Supreme Court

Citation: 2020 ND 305

Opinion Date: December 17, 2020

Judge: Daniel J. Crothers

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

Three Aces Properties LLC appealed, and United Rentals (North America), Inc., cross-appealed a judgment and orders denying their motions to amend the judgment. In 2017, Three Aces sued United Rentals for breach of contract and waste. Three Aces claimed United Rentals breached the lease by failing to pay rent after it vacated the property, failing to maintain and repair the parking area, and failing to maintain and repair the premises. Three Aces alleged United Rentals’ use of the premises resulted in destruction of the asphalt parking area and damages to the building and other areas of the property. Three Aces claimed United Rentals attempted to repair the parking area by replacing the asphalt paving with scoria, the City of Williston notified the parties that replacement of the asphalt with scoria violated zoning ordinances, and the parties disagreed about which party had an obligation to repair the parking area. Three Aces argued the district court erred by failing to award it damages for its breach of contract claims. United Rentals argued the court erred in dismissing its breach of contract and constructive eviction claim. Finding no reversible error, the North Dakota Supreme Court affirmed the district court.

Johnson v. CSAA General Insurance Co.

Court: Oklahoma Supreme Court

Citation: 2020 OK 110

Opinion Date: December 15, 2020

Judge: James E. Edmondson

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

Tokiko Johnson's real property was damaged in a storm and she filed a claim with her insurance company. Johnson also executed an assignment of her insurance claim for the purpose of repairing the property with the execution in favor of Triple Diamond Construction LLC (the construction company). An appraiser retained by the construction company determined storm damage to the property in the amount of $36,346.06. The insurer determined the amount of damage due to the storm was $21,725.36. When sued, the insurer argued the insured property owner was required to obtain written consent from the insurer prior to making the assignment. The Oklahoma Supreme Court determined an insured's post-loss assignment of a property insurance claim was an assignment of a chose in action and not an assignment of the insured's policy. Therefore, the insured's assignment was not prohibited by either the insurance policy or 36 O.S. section 3624. Judgment was reversed and the matter remanded for further proceedings. The insurer's motion to dismiss the appeal was thus denied.

Bank of America, N.A. v. Fay

Court: Rhode Island Supreme Court

Docket: 19-126

Opinion Date: December 11, 2020

Judge: Paul A. Suttell

Areas of Law: Banking, Real Estate & Property Law

The Supreme Court affirmed the judgment of the superior court in favor of Plaintiff, Bank of America, in this consolidated appeal, holding that the hearing justice did not err. Defendants were the sole principles of an LLC. The LLC executed a promissory note to Plaintiff secured by a first-position mortgage on the property. On the same day, Defendants executed a guaranty of the loan agreement. When the LLC failed to pay the note, Plaintiff filed complaints in Connecticut Superior Court and in Rhode Island Superior Court seeking to foreclose on the property and arguing that Defendants were jointly and severally liable for the indebtedness due under their guaranty. In both actions, final judgment was entered in favor of Plaintiff. The Supreme Court affirmed, holding that the hearing justice did not err when he (1) granted Plaintiff's motion for partial summary judgment as to Defendants' liability on the guaranty; (2) found that Defendants were bound by the Connecticut Superior Court's deficiency calculation; and (3) denied Defendant's motion to amend his answer without holding a hearing.

BI Boat Basin Associates, LLC v. Sky Blue Pink, LLC

Court: Rhode Island Supreme Court

Docket: 19-115

Opinion Date: December 15, 2020

Judge: Francis X. Flaherty

Areas of Law: Real Estate & Property Law

The Supreme Court affirmed the judgment of the superior court granting summary judgment in favor of purchasers of a marina, holding that Plaintiff's claims were barred by the doctrine of res judicata. An earlier partition action was commenced to settle an intrafamily properly dispute among descendants of Eleanor Mott. In that action, a special master, who was appointed to manage the businesses of the various properties subject to partition, terminated Plaintiff's lease to one of those properties, a marina, because a bona fide purchaser had agreed to purchase the various properties during the course of the partition proceeding, in which Plaintiff had participated. Plaintiff then initiated this action to challenge the special master's authority to terminate Plaintiff's lease. The superior court granted summary judgment to the purchasers of the marina, finding that Plaintiff's claims were barred by res judicata. The Supreme Court affirmed, holding that the hearing justice did not err by granting summary judgment for Defendants on res judicata grounds.

Johnson v. City of Suffolk

Court: Supreme Court of Virginia

Docket: 191563

Opinion Date: December 10, 2020

Judge: McCullough

Areas of Law: Real Estate & Property Law

In this inverse condemnation action, the Supreme Court affirmed the judgment of the circuit court granting Defendants' demurrers and dismissing the case, holding that the circuit court properly granted the demurrers. Plaintiffs, who leased oyster grounds from the Commonwealth for the purpose of raising oysters in the Nansemond River, filed an inverse condemnation claim against the City of Suffolk and the Hampton Roads Sanitation District alleging that discharge from a sewer system operated by Defendants polluted the river's waters, thereby preventing Plaintiffs from properly managing their oyster ground leases. The circuit court granted Defendants' demurrers and dismissed the case. The Supreme Court affirmed, holding (1) the limited nature of the property interest conferred by a lease of state-owned bottomlands for the purpose of raising oysters forecloses recovery in an inverse condemnation action; and (2) prior takings cases involving different property interests did not control the Court's disposition of Plaintiffs' takings claim here.

Wilburn v. Mangano

Court: Supreme Court of Virginia

Docket: 191443

Opinion Date: December 10, 2020

Judge: S. Bernard Goodwyn

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

The Supreme Court affirmed the judgment of the circuit court sustaining Defendant's demurrer to Plaintiffs' suit, holding that "fair market value" on a specified date, without more specificity, was not a sufficiently certain price term to allow a court to compel specific performance of a contract regarding the purchase of real estate. The decedent executed a will wherein she devised property to Plaintiffs, her three daughters. In the same will, the decedent granted her son, Defendant, an option to purchase the property from his sisters. The decedent then executed a codicil to her will revising the purchase price for the option to "an amount equal to the fair market value at the time of my death." In their complaint, Plaintiffs sought specific performance of a contract for the purchase of real estate. The circuit court dismissed the case with prejudice, holding that there was no enforceable contract because the will and codicil did not determine the purchase price and did not provide a method of determining the purchase price. The Supreme Court affirmed, holding that the term "fair market value," as set forth in the codicil, did not provide a price for the property, nor did it provide a mode for ascertaining the price with sufficient certainty.