Justia Legal Ethics Opinion SummariesArticles Posted in Real Estate & Property Law
Mansfield, et al. v. Heilmann, Ekman, Cooley & Gagnon, Inc.
Plaintiffs appealed a trial court’s grant of summary judgment in favor of defendant on their legal-malpractice and Vermont Consumer Protection Act (VCPA) claims. Mongeon Bay Properties, LLC (MBP) owned property abutting Lake Champlain in Colchester, Vermont, and leased the property to Malletts Bay Homeowner’s Association, Inc. Under the lease, the Association had the obligation to keep the property in good condition. In 2011, following major erosion damage on a portion of the embankment on the lakefront, MBP’s manager notified the Association it was in default for failing to maintain the property and gave the Association forty-five days to make specified, substantial repairs. After the Association failed to make the repairs, MBP filed a complaint against the Association seeking damages and to void the lease for the Association’s violation of its terms. The Association retained defendant Heilmann, Ekman, Cooley & Gagnon, Inc. In the following months, the Association took steps to address MBP’s complaints. However, following a bench trial, the trial court concluded that the Association breached the lease and was in default but declined to grant MBP’s request for lease forfeiture. Instead, it awarded MBP damages for remediation and attorney’s fees and costs. Both parties appealed. The Vermont Supreme Court reversed the trial court’s decision, concluding that the Association breached the lease and that MBP was entitled to termination of the lease. Ultimately, the lease was terminated, and the Association’s members were evicted. Members then sued the Association, alleging that it was negligent in its administration of the provisions of the lease requiring it to keep the property in good condition. Members and the Association settled in 2018. As part of the settlement, the Association assigned members its right to sue defendant for legal malpractice. The Association and members filed a complaint against defendant in the instant case in December 2019, alleging legal malpractice and a violation of the VCPA. The crux of their legal-malpractice claim is a lost opportunity to settle. They proposed that, had defendant tried to settle, the Association and MBP would have likely agreed to terms involving repairs and payment of MBP’s attorney’s fees thus avoiding lease termination and eviction of the Association’s members. The Vermont Supreme Court concluded summary judgment was appropriate on the legal-malpractice claim but not on the VCPA claim, and thus reversed and remanded. View "Mansfield, et al. v. Heilmann, Ekman, Cooley & Gagnon, Inc." on Justia Law
Rysewyk v. Mont. Opticom, LLC
The Supreme Court affirmed the order issued by the district court denying Montana Opticom, LLC's motion to disqualify counsel for Scott Rysewyk, holding that the district court did not abuse its discretion by denying the motion to disqualify Rysewyk's counsel.Rysewyk, represented by Rabb Law Firm (RLF), filed a complaint alleging trespass, ejectment, negligent civil conspiracy, and inverse condemnation by Opticom and Jim Dolan, Jr., a partial owner of Opticom. Opticom filed a motion to disqualify Rysewyk's counsel, arguing that Rysewyk's counsel of record was disqualified from representing him because of the firm's earlier representation of Dolan. The district court denied the motion on the grounds that Opticom offered "no proof of any actual prejudice flowing from the alleged conflict of interest." The Supreme Court affirmed, holding that because the district court was presented with no evidence that Opticom was actually prejudiced, the court did not act arbitrarily or exceed the bounds of reason by denying Opticom's motion to disqualify. View "Rysewyk v. Mont. Opticom, LLC" on Justia Law
Jenkins v. Brandt-Hawley
The Jenkinses bought a one-bedroom home, built in 1909, with a small accessory cottage in San Anselmo. Following conversations with an architect, contractors, and the Town Planning Director, they sought permits to demolish the existing structures and build a new home with a detached studio. The Planning Commission approved the project. The Jenkinses nevertheless worked with neighbors to accommodate their concerns and submitted revised plans, which were also approved. Four individuals unsuccessfully appealed to the Town Council. Attorney Brandt-Hawley filed a mandamus petition on behalf of an unincorporated association and an individual, alleging violations of the California Environmental Quality Act (CEQA), although the appeal did not include any CEQA claim and CEQA has a categorical exemption for single-family homes, and “violation of the Town Municipal Code,” without citation.The trial judge denied the petition, criticizing aspects of Brandt-Hawley’s briefing and advocacy. Petitioners appealed, then offered to dismiss the appeal for a waiver of fees and costs. The Jenkinses rejected the offer. On the day the opening brief was due, Brandt-Hawley dismissed the appeal. The Jenkinses sued Brandt-Hawley for malicious prosecution. The court denied Brandt-Hawley’s special anti-SLAPP (strategic lawsuit against public participation) motion to strike. The court of appeal affirmed. The Jenkinses met their burden under step two of the anti-SLAPP procedure demonstrating a probability of success on their complaint. View "Jenkins v. Brandt-Hawley" on Justia Law
Haupt, et al. v. Triggs, et al.
This appeal stemmed from third-party claims in a legal-malpractice action. Plaintiffs Gail Haupt and Thomas Raftery filed suit against defendant, attorney Daniel Triggs, who represented plaintiffs in a property dispute. Triggs filed a third-party complaint for contribution and indemnification against third-party defendants, Liam Murphy, Elizabeth Filosa, and MSK Attorneys, who succeeded Triggs as counsel to plaintiffs in the property matter. Plaintiffs hired Triggs to represent them in a land-ownership dispute with their neighbors. Triggs took certain actions on behalf of plaintiffs, including sending a letter in 2016 to neighbors asserting that neighbors were encroaching on plaintiffs’ land and threatening litigation against neighbors, but never filed a lawsuit on plaintiffs’ behalf. In 2018, neighbors filed a lawsuit against plaintiffs asserting ownership over the disputed land by adverse possession, and plaintiffs hired third-party defendants to represent them. The adverse-possession lawsuit eventually settled. Plaintiffs then filed this malpractice action against Triggs, alleging that he was liable for legal malpractice by allowing 12 V.S.A. § 501’s statute of limitations for recovery of lands to run without filing an ejectment suit against neighbors, thereby enabling neighbors to bring an adverse-possession claim. Third-party defendants moved to dismiss Triggs’s complaint, and the civil division granted their motion. Triggs appealed this dismissal. The Vermont Supreme Court determined Triggs did not allege that any legal relationship—contractual or otherwise— existed between him and third-party defendants, and the civil division found that no legal relationship existed between the two parties. Instead, Triggs alleged that third-party defendants’ independent actions caused plaintiffs’ injury. The Court determined this is not a basis for implied indemnity. Accordingly, the judgment was affirmed. View "Haupt, et al. v. Triggs, et al." on Justia Law
Haggart v. United States
The Claims Court certified a class of landowners who owned property along a railroad corridor that was converted to a recreational trail under the National Trails System Act. Denise and Gordon Woodley, who jointly owned property along the railroad, were members of the class seeking just compensation under the Fifth Amendment. The Woodleys challenged a proposed settlement and fee award and won a remand that entitled them to access to certain documents used in the calculations of class member compensation and attorneys’ fees.After approval of a settlement agreement that required payment of compensation to the class under the Uniform Relocation Assistance and Real Property Acquisition Policies Act, 42 U.S.C. 4654(c), the Woodleys successfully sought attorney’s fees for work performed by counsel they jointly hired. Denise separately sought attorney’s fees for work performed by her attorney-spouse, Gordon, explaining that he was one of her lawyers throughout the proceeding; she also sought to recoup certain expenses. The Claims Court denied the motion, reasoning that pro se litigants cannot recover attorney’s fees and expenses and that Gordon, as a co-plaintiff and joint owner of the property at issue, was pro se and not compensable. The Federal Circuit affirmed in part. Denise is not entitled to attorney’s fees for the legal work performed by her attorney-spouse. The court remanded for a determination of the proper reimbursement, if any, of her claimed expenses. View "Haggart v. United States" on Justia Law
Sullivan v. Max Spann Real Estate & Auction Co.
Defendant Mengxi Liu, the successful bidder in a real estate auction conducted by defendant Max Spann Real Estate and Auction Co. (Max Spann), asserted as a defense to the seller’s breach of contract action that the contract she signed to purchase the property was void and unenforceable. In her appeal of the trial court’s judgment finding her in breach of her contract, Liu argued that the agreement was unenforceable because a licensed real estate salesperson employed by Max Spann wrote her name and address as the buyer and purchase price information on blank spaces in a template sales contract following the auction. Liu contended that this activity constituted the unauthorized practice of law because the contract did not provide for the three-day attorney review period as mandated by the New Jersey Supreme Court. The Supreme Court agreed with the Appellate Division that a residential real estate sale by absolute auction was distinct from a traditional real estate transaction in which a buyer and seller negotiate the contract price and other terms and memorialize their agreement in a contract. In an absolute auction or an auction without reserve, the owner unconditionally offers the property for sale and the highest bid creates a final and enforceable contract at the auction’s conclusion, subject to applicable contract defenses. “Were we to impose the three-day attorney review prescribed in [the controlling case law] on residential real estate sales conducted by absolute auction, we would fundamentally interfere with the method by which buyers and sellers choose to conduct such sales.” The Court found no unauthorized practice of law in this case and held that the contract signed by Liu was valid and enforceable. View "Sullivan v. Max Spann Real Estate & Auction Co." on Justia Law
Toman Engineering Co. v. Koch Construction, et al.
Koch Construction, Inc.; Marilyn Koch, Personal Representative of the Estate of Michael P. Koch; and Koch Property Investments, Inc. (collectively “appellants”) appealed the judgment and amended judgment entered in favor of Toman Engineering Company (“Toman”). Michael Koch owned and operated Koch Construction and Koch Property Investments (“KPI”). Toman provided engineering services to Koch Construction on various projects, including designing a stormwater management system for the Koch Meadow Hills residential development project in Dickinson, North Dakota. Michael died in August 2017. The stormwater management system included a detention pond referred to as the Marilyn Way Stormwater Pond, which was the detention pond at issue in this case. In 2016, Janet Prchal, Dean Kubas, and Geraldine Kubas, owners of property near the Koch Meadow Hills development, sued the City of Dickinson and KPI for damages, alleging the development of Koch Meadow Hills caused water to drain and collect on their properties. The Prchal lawsuit was settled in September 2018, and the settlement required modifications to be made to the Marilyn Way Stormwater Pond before June 30, 2019. The reconstruction work on the detention pond occurred during the summer and fall of 2019. Toman served a summons and complaint on Koch Construction and Marilyn Koch, to collect unpaid amounts for engineering services Toman provided to the defendants in 2017. Toman filed the complaint in the district court in June 2019. The appellants argued the district court erred in deciding they committed intentional spoliation of evidence and dismissing their counterclaim as a sanction. After review of the district court record, the North Dakota Supreme Court concluded the district court abused its discretion when it dismissed the appellants’ counterclaim as a sanction for spoliation of evidence. Judgment was reversed and the matter remanded for a new trial. View "Toman Engineering Co. v. Koch Construction, et al." on Justia Law
Alexander & Baldwin, LLC v. Armitage
The Supreme Court vacated in part the judgment of the intermediate court of appeals (ICA) to the extent it affirmed the circuit court's judgment as to the "Reinstated Hawaiian Nation," vacated the circuit court's final judgment as to the Reinstated Hawaiian Nation, and affirmed the circuit court's judgment as to all other defendants, holding that the circuit court erred in part.In 2011, Nelson Armitage and a group of others (collectively individual defendants), and Frederick Torres-Pestana, entered onto and began occupying land in Maui owned by Alexander & Baldwin, LLC (A&B). The individual defendants claimed they were acting on behalf of the organization called the Reinstated Hawaiian Nation. A&B brought suit seeking a writ of ejectment, damages, and injunctions barring the individual defendants and the Reinstated Hawaiian Nation from entering A&B's property. The circuit court granted summary judgment for A&B and entered an injunction. The ICA dismissed the appeal as to the Reinstated Hawaiian Nation and rejected Armitage's appeal individually. The Supreme Court vacated in part, holding (1) the judgment against the Reinstated Hawaiian Nation must be voided due to the public policy behind the prohibition on the unauthorized practice of law; and (2) the judgment against Armitage or any other defendant still stands. View "Alexander & Baldwin, LLC v. Armitage" on Justia Law
Artus v. Gramercy Towers Condominium Association
A condominium owner sued her homeowners’ association alleging five causes of action, seeking injunctive and declaratory relief as to rules governing elections, voting, sales, and leasing. One cause of action fell to a demurrer, another to an anti-SLAPP motion to strike. The parties stipulated that three claims were mooted when the association amended its rules. Both sides moved for attorney fees as the prevailing party under the Davis-Sterling Act (Civ. Code 4000); the homeowner also sought fees as the successful party under Code of Civil Procedure section 1021.5.The court of appeal affirmed the denial of attorney fees to both sides. Artus has not shown any abuse of discretion in the trial court’s ruling that Artus was not a “successful party” and failed to show that her lawsuit resulted in a ‘significant benefit’ to the ‘general public or a large class of persons.’ “Her one real win,” requiring the association to incur greater effort in preparing its notice materials for proposed rules changes, is of questionable significance to most association members and will likely result in higher assessments. The association simply took unilateral action to avoid judicial rulings and ‘kicked the can down the road;’ View "Artus v. Gramercy Towers Condominium Association" on Justia Law
Patterson v. Superior Court
In this California Fair Employment and Housing Act (FEHA) case, the Court of Appeal granted the petition for writ of mandate and directed respondent Los Angeles Superior Court to vacate its order awarding attorney fees to Charter and to conduct a new hearing to reconsider Charter's motion for attorney fees. At issue is whether an employer's arbitration agreement authorizes the recovery of attorney fees for a successful motion to compel arbitration of a FEHA lawsuit even if the plaintiff's opposition to arbitration was not frivolous, unreasonable or groundless.The court concluded that, because a fee-shifting clause directed to a motion to compel arbitration, like a general prevailing party fee provision, risks chilling an employee's access to court in a FEHA case absent Government Code section 12965(b)'s asymmetric standard for an award of fees, a prevailing defendant may recover fees in this situation only if it demonstrates the plaintiff's opposition was groundless. In this case, no such finding was made by the superior court in the underlying action before awarding real party in interest Charter its attorney fees after granting Charter's motion to compel petitioner to arbitrate his FEHA claims. View "Patterson v. Superior Court" on Justia Law