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.

Read More

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.

Read More

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.

Read More

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. 

Read More

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).

Read More

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 association.  Adams v. Governor of Del., No. 18-1045, 2019 WL 1549857 (3d Cir. Apr. 10, 2019).

Read More

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

The Lawletter Vol 44 No 4

Brett R. Turner—Senior Attorney, National Legal Research Group

            One of the most common formalities required for family law agreements is that they must be in writing. At common law, premarital agreements were within the statute of frauds. The Uniform Premarital Agreements Act ("UPAA") requires that premarital agreement be both written and signed by both spouses. UPAA §§ 2, 5. Many states, by case law or statute, likewise require that divorce settlement agreements be written.  Amendments to family law agreements must also often be written.

            A generation ago, a writing requirement was easy to construe—the text of the agreement had to appear on paper. But in the 21st century, the world is increasingly paperless. It seems quite likely that the world of family law agreements will join the movement away from paper.

Read More

The Lawletter Vol 44 No 4

Fred Shackelford—Senior Attorney, National Legal Research Group

            Can a government agency be held liable in tort when a child is abused by a foster parent? The Washington Supreme Court addressed this issue of first impression in H.B.H. v. State, 429 P.3d 484 (Wash. 2018). In that case, several children were placed in foster care with a couple who abused the children physically, sexually, and psychologically over a five-year period. For a year during that period, social workers failed to conduct mandatory in-home health and safety checks, and the agency ultimately recommended that the foster parents be allowed to adopt the children. Years later, two of the children brought a tort action against the state Department of Social and Health Services (“DSHS”).

            The DSHS argued that it owed no common-law duty because the children were not in the agency's physical custody at the time the abuse occurred. Rejecting that argument, the court concluded that a detailed statutory scheme created a special relationship between the agency and the children. The custodial relationship between the DSHS and the children gives rise to a common-law duty in accordance with Restatement (Second) of Torts § 315(b). The court found that such a special relationship exists even though the DSHS did not have actual physical custody of the children.

Read More

The Lawletter Vol 44 No 4

Matthew McDavitt—Senior Attorney, National Legal Research Group

            The phrase "personal effects" is a descriptor that commonly leads to litigation regarding its usual or intended scope. Unqualified, the word "effects" in a testamentary context generally denotes personal property of any description. Adler v. First-Citizens Bank & Trust Co., 4 N.C. App. 600, 603, 167 S.E.2d 441, 443 (1969). However, pairing the adjective "personal" with the noun "effects" expressly modifies and limits its scope:

The adjective "personal" would be unnecessary and useless if it did not restrict the meaning of "effects," which standing alone would have covered all personalty. . . . [T]he words "personal effects" . . . [usually] cover only those articles of tangible personal property that in their use or intended use had some intimate connection with the person of the testatrix.

Gaston v. Gaston, 320 Mass. 627, 628, 70 N.E.2d 527, 528 (1947).  Thus, "[t]he term 'personal effects' ordinarily does not include cash and property held for investment." Beasley v. Wells, 55 So. 3d 1179, 1185 (Ala. 2010); In re Estate of Stengel, 557 S.W.2d 255 (Mo. Ct. App. 1977) (the term "personal effects" meant tangible property worn or carried about the person or tangible property having some intimate relation to the person of the testatrix; the term did not include the bonds, stocks, savings and loan accounts, cash, coins, or currency).

Read More