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The Lawletter Blog

PROPERTY: When Partition by Division of Sale Proceeds Is Appropriate

Posted by Matthew T. McDavitt on Wed, Dec 18, 2019 @ 10:12 AM

The Lawletter Vol 44 No 6

Matthew McDavitt—Senior Attorney, National Legal Research Group

            Any co-owner possessing an interest in realty has a right, under common and/or statutory law, to the partition of such realty, as no owner may be forced to remain in co-ownership. Physical partition is preferred and should be made where such realty may be divided without substantial prejudice to the other co-owners. Partition may be made over the objections of the other co-owners, and the fact that the other owners possess property or use interests cannot prevent partition. Fesmire v. Digh, 385 S.C. 296, 683 S.E.2d 803 (Ct. App. 2009).

            In some states, if the realty sought to be partitioned constitutes an owner's constitutionally or statutorily protected homestead, then such homestead status is an affirmative defense to partition, see Morris v. Figueroa, 830 So. 2d 692 (Miss. Ct. App. 2002); conversely, other jurisdictions hold that a cotenant's homestead interest in the property does not preclude partition, premised upon the absolute right of co-owners to exit co-ownership at will, see Wisner v. Pavlin, 2006 SD 64, 719 N.W.2d 770.

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Topics: Matthew T. McDavitt, property sale, partition, sale proceeds

PATENTS: A Federal Agency Is Not a "Person" for Purposes of Review of the Validity of a Patent Under the Leahy-Smith Act

Posted by Anne B. Hemenway on Wed, Dec 18, 2019 @ 10:12 AM

The Lawletter Vol 44 No 6

Anne Hemenway—Senior Attorney, National Legal Research Group

            In Return Mail, Inc. v. USPS, 139 S. Ct. 1853 (2019), the U.S. Supreme Court held that a federal agency is not considered a "person" for purposes of seeking review of the validity of a patent under the Leahy-Smith America Invents Act of 2011 ("AIA"), 35 U.S.C. §§ 1 et seq.  The AIA, enacted on September 16, 2011, changed the patent system from a first-to-invent to a first-inventor-to-file system.  The transition to a first-to-file system took place over a period of approximately 18 months.

            The AIA also created the Patent Trial and Appeal Board and established three types of administrative review proceedings before the Board.  See 35 U.S.C. § 6.  The reviews include an "inter partes review," a "post-grant review," and a "covered-business-method" ("CBM") review.  See id. §§ 311, 321.

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Topics: Anne B. Hemenway, patents, Leahy-Smith Act, first-inventor-to-file system

PERSONAL INJURY: Medical Malpractice—Liability Without a Doctor-Patient Relationship

Posted by Alfred C. Shackelford III on Wed, Dec 18, 2019 @ 09:12 AM

The Lawletter Vol 44 No 6

Fred Shackelford—Senior Attorney, National Legal Research Group

            Can a hospitalist be held liable for advising against admitting a patient to a hospital when he has no doctor-patient relationship and no direct contact with the patient? In Warren v. Dinter, 926 N.W.2d 370 (Minn. 2019), Susan Warren arrived at a health clinic with symptoms of abdominal pain, fever, and chills. A nurse practitioner (Simon) ordered tests and concluded that the patient had an infection that required hospitalization. Simon then called a local hospital to seek admission for the patient, and her call was randomly assigned to Dr. Richard Dinter, a hospitalist on call. Although the facts were disputed as to the nature of the conversation between Simon and Dr. Dinter, the Warren court accepted the nurse's account that Dr. Dinter decided that the patient did not need to be admitted to the hospital.

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Topics: medical malpractice, personal injury, doctor-patient relationship, hospitalist, foreseeability of harm

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

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