The Lawletter Vol 42 No 3

Brad Pettit, Senior Attorney, National Legal Research Group

            "[A]n implied waiver of nonperformance under a contract will be established by a party's conduct inconsistent with the assertion of the right to the performance allegedly waived, or by conduct that indicates that strict compliance with the contract will not be required, provided that the conduct manifests the requisite intent to waive the right to performance or has induced the requisite reliance by the other party." 13 Williston on Contracts § 39:30 (4th ed.) (Westlaw current through May 2015 Update) (footnotes omitted). For example, a lessor who regularly accepts late payments may establish a course of performance or "an order of business," which operates to waive, as to future payments, a provision making time of the essence and to preclude that party from enforcing a forfeiture. Id. It is also a principle of contract law that "[u]nless otherwise agreed, a course of dealing between the parties gives meaning to or supplements or qualifies their agreement." Restatement (Second) of Contracts § 223 (1981) (Westlaw current through Oct. 2016 Update).

The Lawletter Vol 42 No 3

Alistair Edwards, Senior Attorney, National Legal Research Group

            A real estate owner's contract with a realtor may be required to be in writing and signed by the owner in order to satisfy the statute of frauds. As in many States, that is certainly the rule in California. As the California Supreme Court stated nearly 30 years ago, "[a] broker's real estate commissions agreement is invalid . . . unless the agreement or some note or memorandum thereof, is in writing and subscribed by the party to be charged or by the party's agent." Phillippe v. Shapell Indus., 43 Cal. 3d 1247, 1258, 743 P.2d 1279, 1283 (1987) (internal quotation marks omitted).

            But, what happens when there is more than one owner of the property (co-owners) and only one of the owners signs the broker's contract? Is that contract biding on the nonsigning co-owner? Recently, in Jacobs v. Locatelli, 8 Cal. App. 5th 317, 213 Cal. Rptr. 3d 514 (2017), the court wrestled with this exact issue.

The Lawletter Vol 42 No 3

John Stone, Senior Attorney, National Legal Research Group

            Largely in response to mass shootings in places such as Newtown, Connecticut, Aurora, Colorado, Fort Hood, Texas, and Virginia Tech, in 2013, the General Assembly of Maryland enacted the Firearm Safety Act ("FSA"), which bans military-style rifles and shotguns (referred to as "assault weapons") and detachable large-capacity magazines. Affirming in relevant part a decision by the United States District Court for the District of Maryland, Kolbe v. O'Malley, 42 F. Supp. 3d 768 (D. Md. 2014), the Fourth Circuit Court of Appeals has upheld the FSA against a constitutional challenge based on the Second Amendment right to bear arms.  Kolbe v. Hogan, 849 F.3d 114, 2017 WL 679687 (4th Cir. Feb. 21, 2017).

            The appellate court concluded that the assault weapons and large-capacity magazines that were banned by Maryland's FSA were not protected by the Second Amendment; they were most useful in military service, in that they were designed to kill or disable the enemy on a battlefield, and they had a capability for lethality far beyond that of other firearms. This "most useful in military service" concept describes a distinction drawn by the U.S. Supreme Court in District of Columbia v. Heller, 554 U.S. 570, 627 (2008) ("It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause [concerning militias]. But as we have said, the conception of the militia at the time of the Second Amendment's ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty.").

The Lawletter Vol 42 No 3

Paul Ferrer, Senior Attorney, National Legal Research Group

            Rule 34 of the Federal Rules of Civil Procedure permits a party to request the responding party, within the scope of Rule 26(b), to produce for inspection designated documents and electronically stored information. See Fed. R. Civ. P. 34(a)(1). The request for production must, among other things, "describe with reasonable particularity each item or category of items to be inspected." Id. R. 34(b)(1)(A).

            The responding party generally must respond within 30 days after being served with the request for production. Id. R. 34(b)(2)(A). Effective December 1, 2015, Rule 34(b)(2)(B) was amended to require that for each item or category of items requested, "the response must either state that inspection and related activities will be permitted as requested or state with specificity the grounds for objecting to the request, including the reasons." Id. R. 34(b)(2)(B) (emphasis added).

     The Vanguard Law Magazine recently profiled the National Legal Research Group in its national magazine, focusing on the attorneys that make up the firm and the specific benefits NLRG provides to its attorney clients. The staff of 35 attorneys assists attorneys in all 50 states and does some international work. President John F. Buckley explained that the key to NLRG’s success is the deep experience of the staff—NLRG attorneys typically have 20-25 years of experience, working on projects in multiple jurisdictions. That experience allows NLRG attorneys to act as consultants for its clients, helping attorneys determine if they have a case, and then assisting with drafting of pleadings, arguments, and briefs. Since the firm was founded nearly 50 years ago, NLRG attorneys have worked on over 173,000 cases, in every jurisdiction. In additional to litigation-related work, many NLRG attorneys write books on various area of the law, including family law, local government, and human resource law.  Read the full story at https://www.vanguardlawmag.com/case-studies/national-legal-research-group/.

The Lawletter Vol 42 No 2

Fred Shackelford, Senior Attorney, National Legal Research Group

      Can a suit against the federal government be maintained even though it would be time-barred under state law? That was the issue in a medical malpractice action arising in Louisiana. In Bagley v. United States, No. 8:16-CV-30, 2016 WL 6082023 (D. Neb. Oct. 18, 2016), the plaintiff underwent surgery at an Air Force base in Louisiana in 1997. Over the next 15 years, he experienced pain in the area of his right groin. In 2013, an x-ray revealed that a metallic object had been left in the plaintiff's body during the 1997 surgery. Within two years after discovering the object, the plaintiff filed an action in Nebraska against the United States under the Federal Tort Claims Act ("FTCA").

     The government moved to dismiss on the ground that the action was time-barred under Louisiana law, where the cause of action arose. Under a Louisiana statute, La. Rev. Stat. Ann. § 9:5628, medical malpractice actions must be filed within one year after the negligent act or omission, or of discovery thereof, but in no event later than three years after the negligent act or omission occurred. Under the FTCA, there is a two-year limitations period, which accrues in medical malpractice actions when the claimant discovers or reasonably should have discovered the alleged malpractice.

The Lawletter Vol 42 No 2

Lee Dunham, Senior Attorney, National Legal Research Group

     Tax-related identity theft occurs when someone uses a taxpayer's stolen Social Security number to file a fraudulent refund. Often, the taxpayer is not aware of the identity theft until he or she files a valid tax return and is notified by the Internal Revenue Service ("IRS") that multiple returns have been filed in his or her name. Its incidence, like that of other forms of identity theft, has increased in recent years due to hacking and phishing scams that have enabled cybercriminals to obtain far-reaching access to taxpayers' personal data, including Social Security numbers.

     The schemes of the criminal defendants described in United States v. Philidor, 717 F.3d 883 (11th Cir. 2013), and United States v. Gonzalez, No. 13 CR 154 RWS, 2014 WL 316984, at *2 (S.D.N.Y. Jan. 27, 2014), are illustrative of the nature and scope of the problem.

The Lawletter Vol 42 No 2

Sandra Thomas, Senior Attorney, National Legal Research Group

      Another case has confirmed the primacy of the Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA") over local jurisdictional rules that conflict with that statutory scheme. The Court of Civil Appeals of Alabama has reversed a trial court order that held the trial court had subject-matter jurisdiction over a child custody petition that was filed in Alabama by the child's father at the time the father filed a petition for divorce from the child's mother. Ex parte Holloway, No. 2150821, 2016 WL 4493653 (Ala. Civ. App. Aug. 26, 2016).

     The parents were married in Alabama in October 2014 and they separated in June 2015. The father filed a complaint for divorce October 23, 2015 that included a request for custody of the parties' minor son, who was born September 20, 2015. The father alleged that the mother had abandoned the marriage and had moved to Mississippi to live with her mother. Alabama law provides: "Upon granting a divorce, the court may give the custody and education of the children of the marriage to either father or mother, as may seem right and proper." Ala. Code § 30-3-1.

The Lawletter Vol 42 No 2

Matt McDavitt, Senior Attorney, National Legal Research Group

     Where testators or settlors create charitable gifts in trust for named institutional beneficiaries, when the contemplated distribution is ready to be made, sometimes it is found that the intended charity is involved in bankruptcy proceedings. Therefore, the question arises as to the proper disposition of such charitable gifts in trust to the bankrupt institutional beneficiaries.

      There is little law, even nationally, discussing the proper course of action in the event that a named charitable beneficiary is found to be in bankruptcy at the time of distribution. It is logical that a testator who makes a charitable gift would not want his or her gift to be subject to collection by the intended recipient institution's bankruptcy trustee, as such action would solely benefit the charity's creditors, rather than advancing the intended charitable purpose. There is at least one federal opinion interpreting and predicting state law on this point, holding that: (a) Under Massachusetts law as predicted by the First Circuit Court of Appeals, a charitable organization that has ceased to perform charitable work, and that is incapable of redirecting funds for charitable purposes, is ineligible to receive a charitable bequest or gift, absent a contrary provision in will or trust instrument; and (b) It is "difficult to imagine" that, absent special circumstances, a testator seeking to advance general charitable interests would ever intend her gift to be used for the benefit of creditors rather than to promote charitable purposes actually intended. In re Boston Reg’l Med. Ctr., Inc., 410 F.3d 100 (1st Cir. 2005).

The Lawletter Vol 42 No 1

Jason Holder, Senior Attorney, National Legal Research Group

     In United States v. Carey, 836 F.3d 1092, 1093 (9th Cir. 2016), federal agents secured a wiretap order under the Wiretap Act, 18 U.S.C. §§ 2510-2522. The order was based upon evidence that Ignacio Escamilla Estrada ("Escamilla") used the number to smuggle and distribute drugs. Carey, 836 F.3d at 1093. During the seven-day wiretap, the agents realized that Escamilla was not the one using the phone. Id. Nevertheless, believing that those on the phone may be connected to Escamilla, the agents continued listening. Id. Authorities ultimately identified Michael Carey as the unknown speaker. Id. The investigation revealed that Carey was not involved with Escamilla. Id. at 1094.

     Carey moved to suppress all of the evidence derived from the use of the wiretaps, arguing that the government had unlawfully relied on the Escamilla order to justify the independent and unrelated use of wiretap surveillance against Carey. Id. The district court denied Carey's motion, explaining that (1) the government had complied with the statute for the wiretap order against Escamilla, and (2) that there was no requirement for a separate showing of necessity once the agents concluded that T-14 was not used by Escamilla because the agents reasonably believed that the callers and calls might be affiliated with Escamilla or other offenses. Id. at 1095.