Latest 9 Cases This Week: JTH Tax, Inc. v. Aime (4th Cir.), CHKRS, LLC v. City of Dublin, Ohio (6th Cir.), Yeransian v. B. Riley & Co., LLC (8th Cir.)

One More for the Road: Why Congress Must Impeach Donald Trump (Again)

DEAN FALVY

Dean Falvy, a lecturer at the University of Washington School of Law in Seattle, makes the case for impeaching Donald Trump again, after the failed insurrection of January 6. Falvy describes three possible ways to disempower Trump from undermining democracy in our nation and explains why immediate impeachment by the House and removal by the Senate is the most appropriate course of action.

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JTH Tax, Inc. v. Aime

Court: US Court of Appeals for the Fourth Circuit

Dockets: 19-1746, 19-1792

Opinion Date: January 4, 2021

Judge: Roger L. Gregory

Areas of Law: Business Law, Civil Procedure, Contracts

Defendant was a successful franchise operator of several tax preparation businesses under the umbrella of JTH Tax, Inc. and SiempreTax+ LLC (together, "Liberty Tax"). In this case, Liberty Tax requested that defendant assign it the leases for the franchise properties, as provided for by the Purchase and Sale Agreement (PSA). However, the parties could not agree to terms for the assignment. Liberty Tax subsequently filed suit and defendant countersued. Defendant largely prevailed and was awarded a significant sum of damages. The Fourth Circuit vacated a substantial portion of the damages award but upheld the judgment in defendant's favor. On remand, the district court recalculated damages based on the Fourth Circuit's instructions and then, on defendant's motion, subsequently amended the judgment, increasing the damages based on purportedly new evidence. Both parties appealed again. The Fourth Circuit found no error in the district court's denial of defendant's arguments for reinstatement of much of the original damages. The court explained that the district court did not err in concluding that the Rule 59(e) standard and the mandate rule precluded defendant's disgorgement theory. However, the court found error in the district court's conclusion that defendant met the standard for relief based on newly discovered evidence and in the award of nominal damages. The court concluded that, in the declaration and now on appeal, defendant does not show he exercised reasonable due diligence during the three years of litigation to discover and present evidence of unpaid rent on the Burnside property. Furthermore, nominal damages were unavailable because defendant was awarded compensatory damages to remedy Liberty Tax's breach of contract, regardless of the finding that Liberty Tax also breached the contract by breaching the implied covenant. Accordingly, the court affirmed in part, reversed and vacated in part, and remanded with instructions to recalculae damages.

CHKRS, LLC v. City of Dublin, Ohio

Court: US Court of Appeals for the Sixth Circuit

Docket: 20-3435

Opinion Date: January 4, 2021

Judge: Murphy

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

CHKRS leased Friedman’s property and paid $8,500 for an option to purchase by giving 30 days’ notice. With respect to eminent-domain, the lease stated that any money from the City of Dublin was payable to Friedman “until [CHKRS] has procured on the purchase option.” Dublin was constructing a roundabout near the property. Weeks later, Dublin notified the residents that workers would be entering to construct a bike path through the leased property. Dublin initiated a “quick-take” action, adding CHKRS to the suit, and deposited $25,080. with the court. CHKRS emailed Friedman, indicating that CHKRS intended to buy the property. Ohio courts ruled that the email did not “procure” the purchase option and that Friedman was entitled to Dublin’s funds. Dublin began construction. CHKRS sued, citing the driveway's removal. In 2016, the city constructed a new driveway, which CHKRS asserts suffers from design flaws, violates building and traffic codes, creates a hazard, and limits access. CHKRS completed its purchase of the property. CHKRS filed federal litigation, asserting takings and due-process claims, seeking payment for the defective replacement driveway. CHKRS disavowed any attempt to again seek payment for the appropriation of the bike-path easements. The court held that CHKRS lacked Article III standing, reasoning that the state courts had already held that CHKRS lacked a protectable interest in the property. The Sixth Circuit reversed. Article III standing was not the correct doctrine. CHKRS established its standing by alleging a colorable interest in the property for its takings claim. The district court misread Ohio issue-preclusion law in reaching the contrary result. The court affirmed the dismissal of CHKRS’s due-process claims as forfeited.

Yeransian v. B. Riley & Co., LLC

Court: US Court of Appeals for the Eighth Circuit

Docket: 19-1310

Opinion Date: January 4, 2021

Judge: James B. Loken

Areas of Law: Civil Procedure, Corporate Compliance

Aspen agreed to pay FBR, an investment banking firm, 1.25 percent of the aggregate consideration paid to Aspen’s shareholders in the event of an acquisition or merger. Markel subsequently became the parent of Aspen and agreed to pay Aspen shareholders $135,700,000 in cash plus additional compensation based on the future value of Aspen’s business. FBR provided a fairness opinion and received 1.25 percent of the cash consideration. Aspen shareholders obtained “contingent value rights” to the additional compensation (CVR Holders) and challenged Markel’s valuation of the CVRs. The Delaware District Court has not yet issued a valuation opinion. FBR indicated its intent to claim 1.25 percent of the additional compensation. The CVR Holders sought a declaratory judgment that FBR is not entitled to further payment. FBR removed to the District of Nebraska, which dismissed the action because the CVR Holders failed to establish Article III standing. The Eighth Circuit affirmed. While the Holders' contract-based claims to a share of the additional compensation may be a legally protected interest, they have not suffered an injury that is concrete and particularized and actual or imminent. The final amount of the additional compensation has not been determined; no payments have been made. The Holders' only injury in fact is not fairly attributable to FBR asserting a competing claim, and cannot be redressed at this time by the judicial decision they seek. The additional compensation will be paid by Markel, a non-party.

Balla v. Hall

Court: California Courts of Appeal

Docket: D074804(Fourth Appellate District)

Opinion Date: January 6, 2021

Judge: Dato

Areas of Law: Civil Procedure, Communications Law

Defendant Edward Siegel was an unsuccessful candidate for the Solana Beach City Council in 2016. During and after the City Council campaign, Siegel’s campaign manager, defendant Brian Hall, sent a letter to the editor, distributed e-mails to local government and media, and posted Facebook messages about City Council members Lesa Heebner and Mike Nichols, and their relationship with local developer Joseph Balla (with Heebner and Nichols collectively, plaintiffs). Primarily using a fictional persona he created, “Andrew Jones,” Hall asserted or implied that Heebner and Nichols lobbied for the North County Transit District (NCTD) to select Balla for a Solana Beach train station project in exchange for Balla giving them design work on the project and directing a charitable donation to a nature conservancy they supported. Siegel and Hall also ran a campaign advertisement implying that Heebner endorsed Siegel in the City Council race using a favorable quote from a 2007 Certificate of Appreciation signed by Heebner and given to Siegel by the City for his volunteer work. Plaintiffs sued for defamation based on the publications, and Heebner claimed false light invasion of privacy based on the advertisement. Hall filed special motions to strike pursuant to Code of Civil Procedure section 425.16, the anti-SLAPP statute. Siegel agreed not to file anti-SLAPP motions in exchange for relief from default; when he tried to file notices of joinder to Hall’s motions, the trial court rejected them. The court permitted plaintiffs to conduct discovery on actual malice, and then denied the anti-SLAPP motions. Hall appealed, contending the trial court erred: (1) by denying his motions; (2) by denying Siegel’s joinder; and (3) in permitting discovery. In essence, his position was that his publications were political opinions about a conflict of interest and not actionable. To this the Court of Appeal disagreed: calculated or reckless falsehoods can still amount to defamation even in that context. The Court reached a different conclusion as to plaintiffs' false light claim, as Heebner did not show the advertisement was defamatory per se or introduce evidence of special damages. Finally, the Court of Appeal affirmed the joinder and discovery rulings.

Chinese Theatres, LLC v. County of Los Angeles

Court: California Courts of Appeal

Docket: B302708(Second Appellate District)

Opinion Date: January 4, 2021

Judge: Lavin

Areas of Law: Civil Procedure, Legal Ethics, Tax Law

This appeal arose out of a property tax refund action brought by Chinese Theatres against the County. After remanding to the Los Angeles County Assessment Appeals Board to reduce the value of real property owned by Chinese Theatres and to correct the tax roll, the trial court awarded Chinese Theatres attorney fees under Revenue and Taxation Code section 1611.6. The Court of Appeal reversed the postjudgment order awarding Chinese Theatres fees, holding that Chinese Theatres was not entitled to attorney fees under section 1611.6. The court explained that, under a plain reading of section 1611.6, attorney fees are permitted in a tax refund action where: (1) a county board fails to make requested findings; or (2) the court concludes the board's findings are so deficient that it remands the matter with directions for the board to make findings that "fairly disclose [its] determination" on the point at issue, including a "statement of the method or methods of valuation used in appraising the property." In this case, neither of these circumstances exists and thus Chinese Theatres is not entitled to attorney fees under section 1611.6.

Lee v. Kotyluk

Court: California Courts of Appeal

Docket: G058631(Fourth Appellate District)

Opinion Date: January 7, 2021

Judge: Moore

Areas of Law: Civil Procedure, Landlord - Tenant

Plaintiffs Johnny Ki Lee and Un Joong Lee sought to evict a commercial tenant, defendant Sean Kotyluk, for selling marijuana without a license. They filed an unlawful detainer action against him based on Code of Civil Procedure section 1161 (3). Prior to trial, defendant filed a motion in limine requesting judgment on the pleadings, claiming plaintiffs’ three-day notice (the notice) was defective because it was served on June 4, 2019, but plaintiffs had not become owners of the property until June 20, 2019. In response, plaintiffs explained that the prior owner of the property, Rosemarie Haynes, had served the notice before transferring ownership of the property to them. The trial court granted judgment on the pleadings because the notice was issued prior to plaintiffs obtaining ownership of the property and because the notice failed to identify the party to whom defendant could return possession of the property. The court also denied plaintiffs leave to amend. Plaintiffs’ appeal raised two questions of first impression: (1) whether a property owner could file an unlawful detainer action based on a notice served by its predecessor in interest; and (2) did notice under section 1161 (3) have to identify a person to whom the tenant could turn over possession of the property if the tenant chose to quit? The Court of Appeal ruled: (1) nothing in the text of section 1161 prevented a successor owner from filing an unlawful detainer action, "nor does such a procedure undermine the purpose of the notice requirement in subdivision (3), which is primarily designed to give the tenant an opportunity to cure the breach and retain possession of the property;" and (2) identifying a specific person was not required by the statute: "Based on our reading of this subdivision, it appears the Legislature purposefully chose not to include such a requirement."

Wilsonart, LLC v. Lopez

Court: Florida Supreme Court

Docket: SC19-1336

Opinion Date: December 31, 2020

Judge: Muniz

Areas of Law: Civil Procedure, Personal Injury

The Supreme Court held that there should not be an exception to the present summary judgment standards applied by Florida state courts that would allow for summary judgment in favor of the moving party when the movant's video evidence negates or refutes any conflicting evidence presented in opposition to the summary judgment motion and there is no evidence that the videotape evidence has been altered or doctored. In this case arising from a fatal rear-end car crash the trial court granted summary judgment for Defendants, relying on video evidence from the front car's forward-facing dashboard camera that appeared to refute Plaintiff's version of the events. The Fifth District Court of Appeal reversed, concluding that the trial court improperly weighed competing evidence on material facts. The Supreme Court approved the result, holding that there was no reason to adopt an ad hoc video evidence exception to the existing summary judgment standard.

Wallace v. Heath

Court: Idaho Supreme Court - Civil

Docket: 47460

Opinion Date: January 6, 2021

Judge: Roger S. Burdick

Areas of Law: Civil Procedure, Professional Malpractice & Ethics

Janet Heath appealed a district court order and judgment that granted Angela Palmer and Taylor Real Estate’s motion for summary judgment and dismissing her claims for negligence and breach of contract. The events that brought about this case began in the fall of 2017 when Heath began looking to buy a house in Bingham County, Idaho. Heath and Palmer communicated back and forth via emails and text messages, arranging financing through a lender, and discussing property listings. They met to view several listings together, including a property owned by Donald and Shirley Ciccone. With Palmer's help, Heath made a written offer on the Ciccione property. The offer, titled "RE-21 Real Estate Purchase and Sale Agreement," indicated Palmer and Taylor Real Estate were acting as “nonagents” for Heath. Heath also signed an Agency Disclosure Brochure indicating that she was a “customer” of Palmer and Taylor Real Estate. The offer form further stated that Heath would remain a “customer” unless she entered into a written representation agreement. Heath and Palmer never signed such an agreement. The Ciccones made a counter-offer which Heath accepted. The Ciccones gave Palmer a property condition disclosure, which revealed the existence of a shared driveway agreement with a neighboring property owned by Walter and Wilma Wallace. At some point before the closing date, the title company contacted Palmer and informed her that the Driveway Agreement needed to be modified to “run with the land” before it would insure the title. Palmer contacted Mr. Wallace and informed him that Heath was trying to buy the Ciccone property but could not do so without a driveway agreement. The Wallaces and the Ciccones signed a 2018 Driveway Agreement, which was essentially the same as the 1998 Driveway Agreement except that it was “a covenant running with the land” and redefined the shared portion of the driveway. Heath and the Ciccones closed on the property, and the warranty deed and the 2018 Driveway Agreement were recorded with the Bingham County Recorder that afternoon. Heath stated in her declaration that she would not have gone through with the sale if she had known that the driveway easement had been shortened by approximately two-thirds of its original length, effectively cutting off access to the garages on her property and significantly reducing the property’s value. The proceedings in this case began in June 2018 when the Wallaces filed a petition to quiet title against Heath and another individual living in her home. The Wallaces filed their petition after a dispute with Heath regarding the dimensions and use of the shared driveway. Finding that the district court erred in concluding that there was no genuine dispute of material fact regarding whether Palmer and Taylor Real Estate violated the statutory duties owed to Heath as a “customer” under Idaho Code section 54-2086, the Idaho Supreme Court reversed the grant of summary judgment in favor of Palmer and Taylor Real Estate.

In re Dickey

Court: Montana Supreme Court

Citation: 2021 MT 3

Opinion Date: January 5, 2021

Judge: Mike McGrath

Areas of Law: Civil Procedure, Criminal Law

The Supreme Court affirmed the order of the district court vacating its prior order to expunge Justin Dickey's misdemeanor records, holding that the Montana Rules of Civil Procedure apply to proceedings brought under the Misdemeanor Expungement Clarification Act and that the district court properly determined that venue was not proper under Mont. Code Ann. 46-18-1105. Dickey filed a petition for expungement of his misdemeanor criminal records, referred only to "misdemeanor criminal record(s)" generally. The district court granted the petition. On reconsideration, the district court vacated its prior expungement order and dismissed the matter, determining that venue was improper. The Supreme Court affirmed, holding (1) the Rules of Civil Procedure apply to a proceeding brought under the Expungement Act; and (2) the district court did not err in determining that Dickey's prior speeding violation in Kalispell was insufficient to establish proper venue in the Eleventh Judicial District for expungement of misdemeanors under section 46-18-1105.