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    The Lawletter Blog

    CIVIL PROCEDURE: Contractual Waivers of the Statute of Limitations Unenforceable in Virginia

    Posted by Paul A. Ferrer on Mon, Dec 16, 2019 @ 12:12 PM

    The Lawletter Vol 44 No 6

    Paul Ferrer—Senior Attorney, National Legal Research Group

                In a decision with far-reaching implications in the commercial world, the Virginia Supreme Court has decided that contractual waivers of the right to plead the statute of limitations that do not meet specified statutory criteria are unenforceable under Virginia law. See Radiance Capital Receivables Fourteen, LLC v. Foster,  ___ Va. ___, 833 S.E.2d 867 (2019), available at http://www.courts.state.va.us/opinions/opnscvwp/1180678.pdf. The statute in question provides that unless the failure to enforce a promise not to plead the statute of limitations would operate as a fraud on the promisee, a written promise not to plead the statute of limitations is valid and enforceable only "when (i) it is made to avoid or defer litigation pending settlement of any case, (ii) it is not made contemporaneously with any other contract, and (iii) it is made for an additional term not longer than the applicable limitations period." Va. Code Ann. § 8.01-232(A).

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    Topics: Paul A. Ferrer, statute of limitations, civil procedure, contractual waivers, unenforceable contract

    APPELLATE PRACTICE:  Sanctions Including Dismissal and Fines Imposed over Noncompliant Briefs

    Posted by Nicole Prysby on Mon, Dec 16, 2019 @ 09:12 AM

    The Lawletter Vol 44 No 6

    Nicole Prysby—Senior Attorney, National Legal Research Group

                The appellate process is already an expensive and difficult process. Why sink your chances of a win by presenting the court with a brief that is not compelling or, even worse, is noncompliant with court rules?

                In very egregious cases, a noncompliant brief may result in the denial of the appeal. In 2019, a North Carolina court concluded that dismissal was an appropriate sanction. In Ramsey v. Ramsey, 826 S.E.2d 459 (N.C. Ct. App. 2019), the appellant failed to file the record on appeal within 15 days of the date the record was settled and included a discussion of relevant facts in the argument section, instead of in a separate fact statement. He included the standard of review in only one of his three argument sections and had a litany of minor errors, such as a failure to identify the specific names of persons served in the Certificate of Service. And although the brief met word limits, the Certificate of Compliance stated the word count, rather than the required statement that the brief contains no more than the permitted number of words. The court declined to make its own "voyage of discovery through the record" in order to glean the relevant circumstances for the appeal and dismissed the appeal. Id. at 464.

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    Topics: appellate procedure, appeal dismissal, Nicole Prysby, noncompliant brief, sanctions

    TORTS: Immunity of Yelp for Derogatory User Comments

    Posted by Amy Gore on Thu, Aug 1, 2019 @ 11:08 AM

    The Lawletter Vol 44 No 5

    Amy Gore, Senior Attorney, National Legal Research Group

                Dawn Hassell and the Hassell Law Group brought a defamation suit against a former client who posted a derogatory review of the attorney's services on the third-party platform, Yelp, which was not a party to the original action. A default judgment was entered that directed Yelp to remove the review and Yelp was served with the judgment. Yelp then objected to the enforcement of the judgment asserting that the judgment was invalid under the Due Process Clause and the Communications Decency Act of 1996, 47 U.S.C. § 230. The U.S. Supreme Court recently declined to hear an appeal of the decision issued by the California Supreme Court in this matter, making the state decision final. Hassell v. Bird, 5 Cal. 5th 522, 420 P.3d 776 (2018), cert. denied sub nom. Hassell v. Yelp, Inc., 139 S. Ct. 940 (2019).

                Yelp's user agreement indicated that it would remove reviews it found to be defamatory, but it elected to retain the review forming the basis of the underlying suit. Yelp asserted that the directive order violated § 230 of the Communications Decency Act, which afforded immunity to "providers of interactive computer services against liability arising from content created by third parties." There was no dispute that had Yelp been named a defendant in the underlying action, it would have been entitled to claim the immunity afforded under § 230, which would have shielded the provider from monetary and injunctive relief. The order of removal treated Yelp as a publisher of the derogatory reviews by challenging its decision to post the reviews in question. Subjecting Yelp to the removal order, and the extensive litigation that followed, would defeat the immunity offered under the statute.

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    Topics: Due Process Clause, tort claims, Amy Gore, derogatory comments, Yelp

    PROPERTY: Barking Dogs Results in Competing Nuisance Claims Between Neighbors

    Posted by Alistair D. Edwards on Thu, Aug 1, 2019 @ 11:08 AM

    The Lawletter Vol 44 No 5

    Alistair Edwards—Senior Attorney, National Legal Research Group

                Dogs barking incessantly can result in a nuisance lawsuit between neighbors. For example, in Allen v. Powers, 64 Misc. 3d 171, 97 N.Y.S.3d 837 (City Ct. 2019), the plaintiff sued her neighbors claiming that their two German Shepherds barked incessantly and the dogs' constant barking at all hours interfered with the plaintiff’s right to quiet use and enjoyment of her property. This was a classic private nuisance claim.

                However, the interesting twist in that case was that the defendant dog owners counterclaimed, contending that the plaintiff had repeatedly called the municipal authorities with specious complaints. As alleged in the counterclaim, the plaintiff’s efforts were an attempt to make the defendants move or have their landlord evict them. The plaintiff responded, asking the court to dismiss the counterclaim for failure to state a cause of action. The plaintiff argued that the counterclaim sounded like a claim for harassment, and New York does not recognize such a cause of action. In refusing to dismiss the counterclaim, however, the court treated the counterclaim as a private nuisance claim.

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    Topics: property law, Alistair D. Edwards, nuisance claim, barking dogs, counterclaim for harassment

    WILLS: Succession to the Estate of French Rock Star Johnny Hallyday

    Posted by James P. Witt on Thu, Aug 1, 2019 @ 10:08 AM

    The Lawletter Vol 44 No 5

    Jim Witt—Senior Attorney, National Legal Research Group

                Johnny Hallyday ("Johnny"), an iconic French rock star for six decades,  modeled himself on Elvis Presley and James Dean. He died on December 6, 2017, leaving an estate possibly worth over $100 million. Born Jean-Philippe Smet, he adopted the last name of an uncle and was survived by his fourth wife, Laeticia, whom he married in 1996 when she was 21. Johnny's first wife was Sylvie Vartan, who was one of a group of French popstars in the sixties known as the Yeh-Yeh Girls. He also had a liaison with French actress Nathalie Baye, with whom he had one of his two older children, Laura Smet. The other older child is David Hallyday. Two younger children were adopted from Vietnam by Johnny and Laeticia.

                A controversy arose concerning the proper jurisdiction over the estate. Johnny built a house in Los Angeles and spent a good portion of his last seven years in California, where he indulged his passion for motorcycles. He executed a will in California under which he left his entire estate to Laeticia, thereby disinheriting all of his children, apparently believing that his two older children were wealthy in their own right and that the younger ones would be well-provided for by Laeticia. Under California Probate Code § 21621, a parent may disinherit a child if that intention is manifested in the testamentary instrument.

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    Topics: wills, James P. Witt, succession, Johnny Hallyday, jurisdiction over estate

    CIVIL RIGHTS: The ADEA's Numerosity Requirement Does Not Apply to Governmental Defendants

    Posted by Steven G. Friedman on Thu, Aug 1, 2019 @ 10:08 AM

    The Lawletter Vol 44 No 5

    Steve Friedman—Senior Attorney, National Legal Research Group

                The Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. §§ 621-634, is federal legislation intended "to prohibit arbitrary age discrimination in employment."  29 U.S.C. § 621(b). In relevant part, the ADEA provides that "[i]t shall be unlawful for an employer . . . to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." Id. § 623(a)(1).

                A threshold determination for implicating the ADEA is whether a potential defendant is an "employer" within the meaning of the ADEA. The ADEA defines "employer," in part, as "a person engaged in an industry affecting commerce who has twenty or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year."  Id. § 630(b). One notable qualifier for "employer" is having a minimum of 20 employees.

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    Topics: civil rights, Steven G. Friedman, ADEA, numerosity requirement, exemption of state entities

    CRIMINAL LAW: Mere Possession of Concealed Firearm Does Not Justify Terry Stop

    Posted by Mark V. Rieber on Thu, Aug 1, 2019 @ 10:08 AM

    The Lawletter Vol 44 No 5

    Mark Rieber—Senior Attorney, National Legal Research Group

                In Commonwealth v. Hicks, No. 56 MAP 2017, 2019 WL 2305953 (Pa. May 31, 2019), the Pennsylvania Supreme Court overruled precedent from the Pennsylvania Superior Court in Commonwealth v. Robinson, 410 Pa. Super. 614, 600 A.2d 957 (1991), and held that the mere possession of a concealed firearm does not provide reasonable suspicion of criminal activity to justify a stop pursuant to Terry v. Ohio, 392 U.S. 1 (1968).  The court explained that the prior holding in Robinson, upholding such stops (the Robinson rule) improperly dispensed with the requirement of individualized suspicion and, in doing so, misapplied the overarching totality of the circumstances test. 

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    Topics: criminal law, Mark V. Rieber, reasonable suspicion, concealed firearm, prior knowledge requirement

    CIVIL PROCEDURE: Dismissal of Frivolous Prisoner and In Forma Pauperis Actions in Federal Court

    Posted by Paul A. Ferrer on Wed, Jul 31, 2019 @ 12:07 PM

    The Lawletter Vol 44 No 5

    Paul Ferrer—Senior Attorney, National Legal Research Group

                Federal courts may be inundated with frivolous pleadings filed by prisoners or other claimants proceeding in forma pauperis. But the courts have powerful statutory weapons for dealing with such pleadings and dismissing them at the earliest stage of a proceeding, if warranted. In fact, federal courts are specifically required to screen prisoner actions and dismiss them if they fail to pass muster. See 28 U.S.C. § 1915A.

                Section 1915A affirmatively requires the district court to review, before docketing if feasible or as soon as practicable after docketing, every civil complaint in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity. Id. § 1915A(a). After reviewing the complaint, the court must either identify any cognizable claims or dismiss all or part of the complaint if it is “frivolous, malicious, or fails to state a claim upon which relief may be granted.” Id. § 1915A(b)(1). Another federal statute similarly requires a district court to dismiss any proceeding brought in forma pauperis if the court determines, “at any time,” that the action is “frivolous or malicious” or “fails to state a claim on which relief may be granted.” Id. § 1915(e)(2)(B)(i), (ii).

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    Topics: frivolous claims, civil procedure, In Forma Pauperis Actions, federal court

    CONSTITUTIONAL LAW: Requiring Major Political Party Affiliation for State Court Judges Runs Afoul of First Amendment Right of Association

    Posted by John M. Stone on Wed, Jun 19, 2019 @ 10:06 AM

    The Lawletter Vol 44 No 4

    John Stone—Senior Attorney, National Legal Research Group

                In Delaware, a judicial nominating commission, with members balanced between the two major political parties, provides recommended candidates to the Governor for the appointment of judges to the state courts. When a position becomes open, the commission gives public notice of the position, including the major party membership required for nomination to a particular judgeship. The party membership requirement has its origins in article IV, § 3 of the Delaware Constitution, which effectively excludes all candidates for state judge positions who are not members of either the Republican or the Democratic Party.

                A Delaware resident and member of the Delaware Bar considered applying to become a state judge, but in the end, he did not apply because as an independent politically, his application would have been futile in light of the constitutional provision. Nonetheless, first a United States district court and then a federal appellate court found that he had standing to challenge the limitation on judicial candidates to the two major political parties for the Delaware Supreme Court, the Superior Court, and the Chancery Court on the ground that such exclusion of persons not members of those parties was an unjustified infringement on the plaintiff's First Amendment freedom of associationAdams v. Governor of Del., No. 18-1045, 2019 WL 1549857 (3d Cir. Apr. 10, 2019).

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    Topics: Delaware, constitutional law, John M Stone, appointment of judgeship, party membership requirement

    ESTATES: Gifts Under a Power of Attorney

    Posted by D. Bradley Pettit on Wed, Jun 19, 2019 @ 10:06 AM

    The Lawletter Vol 44 No 4

    Brad Pettit—Senior Attorney, National Legal Research Group

                The Uniform Power of Attorney Act ("UPAA") provides that

    (b) Unless the power of attorney otherwise provides, language in a power of attorney granting general authority with respect to gifts authorizes the agent only to:

    (1) make outright to, or for the benefit of, a person, a gift of any of the principal's property, including by the exercise of a presently exercisable general power of appointment held by the principal, in an amount per donee not to exceed the annual dollar limits of the federal gift tax exclusion under Internal Revenue Code Section 2503(b) . . . and

    (2) consent, pursuant to Internal Revenue Code Section 2513, 26 U.S.C. Section 2513, [as amended,] to the splitting of a gift made by the principal's spouse in an amount per donee not to exceed the aggregate annual gift tax exclusions for both spouses.

    Unif. Power of Attorney Act § 217(b), U.LA. (Westlaw current through 2017 Annual Meeting of the National Conference of Commissioners on Uniform State Laws). Read More

    Topics: estates, Uniform Power of Attorney Act, D. Bradley Pettit, authority to make a gift, personal liability

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