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Monday, February 28, 2011

Property: Into to Easements

Willard v. First Church of Christ, Scientist:
Supreme Court of California
498 P.2d 987 (1972)
Issue: Was the easement transferred to the new owner (Willard)                                                            
Rule: Easement
-Common law: One cannot reserve an interest in property to a stranger to the title
Application: Recently, the common law rule has been attacked by many commentators, and invalidated by two states (Kentucky, and Oregon).
-The primary objective in construing a conveyance is to try to give effect to the intent of the grantor
-California courts have found ways to avoid the rigid structures of the rule by creating exceptions to it
-Willard contends that the old rule should be applied to invalidate the church's easement because grantees and title insurers have relied upon it.
-No evidence to support this contention have been presented.
-No evidence that a policy of title insurance was issued
-Willard could not have relied upon the common law rule to assure him of an absolute fee because he did not even read the deed containing the reservation
-The determination whether the old common law rule should be applied to grants made prior to this case involved a balancing of equitable and policy considerations
-Balance the injustice which would result from refusing to give effect to the grantor's intent against injustice, if any, which might result by failing ot give effect to reliance on the old rule and the policy against disturbing settled titles.
-Other cases may warrant an application of the balancing test, this case does not. No reliance
-Willard contends that the church has received no interest in this case because the clause stated only that the grant was "subject to" the church's easement, and not that the easement was either excepted or reserved
-The clause, as a whole, states that the easement is "given"
-Even if there is some ambiguity or conflict in the clause, the trial court found on substantial evidence that the parties to the deed intended to convey the easement to the church.
Conclusion: Yes

-Genuvieve McGuigan owned lots 19 and 20. (19 was occupied, and 20 was vacant)
-Was a member of the church located across the street from lots 19 and 20, and permitted the church to park in lot 20.
-Sold lot 19 to Petersen, who used the building as an office
-Petersen wanted to resell the lot, so he listed with Willard, a realtor, who expressed interest in purchasing both lots 19 and 20.
-At the time of sale, Petersen did not own lot 20. Petersen talked with McGuigan and McGuigan agreed to sell lot 20 if the easement would transfer with it.
-McGuigan testified that the lot was sold for 1/3 less than she would have without the easement
-Church's attorney drew up a provision in the deed including the easement in the sale
-Willard paid the agreed purchase price into the escrow and received Petersen's deed 10 days later. The deed did not mention an easement for parking by the church.
-Petersen did mention to Willard that the church would want to use lot 20 for parking
-Willard later became aware of the easement, and commenced the action to quiet title.

Procedural History:
-Lower Court: Found that although intention to convey an easement was found, the clause employed was ineffective for that purpose because it was invalidated by the common law rule that one cannot "reserve" an interest in property to a stranger to the title.

Saturday, February 26, 2011

Civil Procedure: Burger King (Personal Jurisdiction)

Burger King Corp. v. Rudzewicz:
471 U.S. 462 (1985)
Issue: Does Florida's Long-Arm Statute provide jurisdiction over the Michigan residents?
Rule: Extends Jurisdiction: To "any person, whether or not a citizen or resident of this state," who, inter alia, "breaches a contract in this state by failing to perform acts required by the contract to be performed in this state," so longs as the cause of action arises from the alleged contractual breach.
Application: Defendants argue that since they are Michigan residents, and because Burger King's claim did not "arise" within the Southern District of Florida, the District Court lacked personal jurisdiction over them.
-As long as a commercial actor's efforts are "purposefully directed" toward residents of another state the court has consistently rejected the notion that an absence of physical contacts can defeat personal jurisdiction there.
-The defendant deliberately "reached out beyond" Michigan and negotiated with a Florida corporation for the purchase of a long-term franchise and the manifold benefits that would derive from affiliation with a nationwide organization.
-Defendant was in a 20 year contract with Burger King in Florida
-The Court of Appeals overlooked the evidence that the defendant knew he was affiliating himself with a Florida enterprise
-The Contract emphasized this.
-Payments were sent there
-When problems arose, defendants learned that the Michigan office was powerless to resolve the disputes
-Nothing in the cases suggests that choice-of-law provisions are irrelevant in considering whether a defendant has "purposefully invoked the benefits and protections of a state's laws" for jurisdictional purposes
-Standing alone, this would be insufficient. Combined with the 20 year contract it is
-Although defendant has pointed to Michigan's Franchise Investment Law, he has not shown how jurisdiction in Florida might be unconstitutional
-A change of venue could solve the inconvenience problems that the defendant may face.
-Defendant argued to the district court that Burger King was guilty of misrepresentation, fraud, duress, and it gave insufficient notice in its dealings with him.
-Rule 52(a): Findings of fact shall not be set aside unless clearly erroneous
Conclusion: Yes

Dissent: It is unfair to require the franchisee to defend a case of this kind in the forum chosen by the franchisor
-Defendant did not prepare his French fries, shakes and hamburgers in Michigan, and then deliver them into the stream of commerce, with the expectation that it would be purchased by consumers in FL
-Defendant did business in MI, and was located there.
-Court relies on the language in the contract to conclude that the defendant "purposefully availed" himself of the benefits and protections of Fl laws.

-Burger King: Florida Corporation, with principal office in Miami
-Franchisees pay Burger King an initial $40,000 franchise fee and commit themselves to payment of monthly royalties, advertising and sales promotion fees, and rent computed in part from monthly gross sales.
-Franchisees also submit to the national organizations exacting regulation of virtually every conceivable aspect of their organization
-Two-Tiered administrative structure.
-Contracts provide that the relationship is established in Miami and governed by Florida law, with payment of all required fees and forwarding of notices to the Miami HQ
-Miami HQ also sets policy and works directly with its franchisees in attempting to resolve major problems
-Day-to-Day monitoring of the franchisees, is conducted through 10 district offices, which report to the Miami HQ

-Defendant directly applied to the Birmingham, Michigan district office (autumn 1978)
-Application was forwarded to the Miami HQ
-Defendant's business partner attended management courses in Miami
-Defendant also purchased $165,000 worth of restaurant equipment from Miami
-During negotiations with the Miami HQ, the defendant obtained some concessions, including a $10,000 reduction in rent for the 3rd year.
-During the first year, the franchise saw profits, but later in the year, they declined.
-Eventually fell behind on payments, HQ terminated the franchise and ordered defendant to vacate
-Defendant refused, and continues to occupy the premises.

-3 Day bench trial, court concluded that it had jurisdiction over defendant
-Ordered defendant to vacate, and pay $228,875
-Reversed, finding that the district court did not properly exercise personal jurisdiction over the defendant.
-Concluded that jurisdiction under these circumstances would offend the fundamental fairness which is the touchstone of due process.
-Found that the defendant reasonably believed that the Michigan offices was the embodiment of Burger King, and therefore had no reason to anticipated suit in Florida.
-Held that choice-of-law provisions were irrelevant to personal jurisdiction

Friday, February 25, 2011

Torts: Causation Notes

New York Central R. Co. v. Grimstad:
264 Fed. 334 (2d Cir. 1920)
Issue: Was there enough evidence to allow the jury to find that the defendant's negligence caused the plaintiffs death?                                                                                                                                                                       
Rule: Causation
Application: Life-preservers and life belts are intended to be put on the body of a person before getting into the water, and would have been of no use at all to the decedent
-Life buoys are intended to be thrown to a person when in the water, charge will be treated as if the complaint covered life buoys
-The proximate cause of the decedents death was his falling into the water, and it can be assumed that it happened without negligence on his part or on the part of the defendant.
-The jury was left to pure speculation as to whether the life buoy would have saved the mans life
-A jury might well conclude that a light near an open hatch or a rail on the side of a vessel's deck would have prevented a person's falling into the hatch or into the water, in the dark.
-There is nothing whatever to show that the decedent was not drowned because he did not know how to swim, nor anything to show that, if there had been a life buoy on board, the decedent's wife would have got it in time.
Conclusion: No

-Action under the Federal Employers' Liability Act to recover damages for the death of Angell Grimstad, captain of the covered barge Grayton, owned by the defendant railroad company
-Charge of negligence is failure to equip the barge with proper life-preservers and other necessary and proper appliances, for want of which the decedent, having fallen into the water, was drowned

-The barge was lying on the port side of the steamer Santa Clara, on the north side of Pier 2, Erie Basin, Brooklyn, loaded with sugar in transit from Havana to St. John, N.B.
-The tug Mary M, entering the slip between piers 1 and 2, bumped against the barge
-After feeling the shock, the decedents wife came out from the cabin, looked on one side, saw nothing, then checked the other side and saw her husband in the water about 10 feet from the barge holding up his hands out of the water.
-Decedent did not know how to swim.
-The wife ran back to the cabin for a small line, and when she had returned, he had disappeared

-The court left it to the jury to say whether the defendant was negligent in not equipping the barge with life-preservers and whether, if there had been a life-preserver on board, Grimstad would have been saved from drowning.
-Jury found as a fact that the defendant was negligent in not equipping the barge with life-preservers
-Denied the defendants motion to dismiss (Directed Verdict)

Thursday, February 24, 2011

Medical Malpractice Reform Notes

Here's some quick notes on medical malpractice reform. (forgive the grammar, typed in class.)

Typical Reform:
  1. Shorten SOL
    1. Ridiculous: Patients don't know they've been victims until long after they have had the procedure
      1. Only one reason: Protect the insurance companies
  1. Put a ceiling on damages
    1. Terrible Idea: Damage limitations do nothing to help plaintiffs who have legitimate small claims
    2. They are unjust to plaintiffs with big claims
      1. Premature infant given excessive oxygen. Blind + mentally retarded. $2m cover the cost? No
    1. Damage limitations cast the cost of injuries where they can least well be born. Individual suffers.
      1. Provide a windfall to insurance companies
  1. Eliminate lawyers contingency fees
    1. Simply a way to play on doctors irrational hatred of lawyers
      1. The contingency fee is the doctors best friend
        1. Opponents to contingency fee argue that it gives a way for lawyers to inflate the costs
      1. Lawyers have an ethical obligation to get the most possible for their patient
      2. The contingency fee gives the plaintiffs lawyers an incentive to screen out bad cases.
        1. Plaintiffs lawyer gets nothing if the client gets nothing.
    1. Elimination of contingency fees can only hurt poor people with big claims
      1. Wouldn't be able to hire a lawyer otherwise.
    1. Who are hurt by contingency fees: People with legitimate small claims
      1. But, all legal fees hurt poor people with legitimate small claims
  1. Eliminate ad-damnum clause in complaint
    1. Thought is that it gets into the newspaper, and looks bad
    2. Not going to solve the problems, not bad either
  1. Require compulsory arbitration or medical review panels as a substitute for litigation
    1. If it is part of the litigation it does nothing but lengthen the litigation
    2. If it is used instead of litigation, then you don't add time to it, but rather, you have turned something from a social question, into a scientific question, putting the doctors in charge. This makes no sense
    3. If it is part of it, you have retained all of the evils of the present system
  1. Adoption of designated compensable event system.
    1. Some 'body' of persons gets together (doctors), and think about everything that can possible go wrong in the entire practice of medicine.
      1. 2 lists: those things caused by negligence, those things not caused by negligence if they go wrong.

Could do:
  1. Limit pain and suffering damages
  2. Get rid of lump sum judgments

-We need a system of loss allocation
-A pure question of economics.
-Has nothing to do with how the accident occurred. Instead, only addresses who should bear the cost of the injury
-Adopt a no-fault system for compensation for medical mal occurrences
-Typically accompanied by damage restrictions that limit pain and suffering compensations
-More people recover, for less amount
-Still need to prove that the harm was caused by the physician
-Godfather approach
-Offer they can't refuse, patients want the money now.
-Accident compensation scheme (like New Zealand)
-Automatically compensates everyone, losses are well spread
-Never will be done here, can't agree on a table of prices.
-We need a system for disciplining physicians
-Medical discipline boards are worthless
-Underfunded, understaffed, no effective case finding mechanisms
-Need to look for bad practice, before injuries
-Then have a wide range of sanctions

Advice to doctors:
  1. Avoid malpractice, figure out how to reduce malpractice
    1. Anesthesiologists have done this. Wrote out checklists for what to do.
  1. The most important thing to do is to apologize
    1. Ample evidence that angry patients are more likely to sue.
    2. Explain what went wrong, and what you will try to do to prevent this from happening again.

Tuesday, February 22, 2011

Civil Procedure: Diversity Jurisdiction-- Hertz v. Friend

Hertz Corp v. Friend:
Supreme Court of the United States
130 S.Ct. 1181
Issue: Has diversity jurisdiction been established?
Rule: Federal Diversity Jurisdiction Statute: "A corporation shall be deemed to be a citizen of any state by which it has been incorporated and of the state where it has its principal place of business"
Application: In resolving the different interpretations of the Federal Diversity Jurisdiction Statute, primary weight must be placed upon the need for judicial administration of a jurisdictional statute to remain as simple as possible.
-"Principal place of business" refers to the place where the corporation's high level officers direct, control, and coordinate the corporation's activities.
-Lower federal courts have metaphorically called that place the corporation's nerve center.
-Nerve Center: The place from which its officers direct, control and coordinate all activities without regard to locale, in the furtherance of the corporate objective.
-Did not address when a corporation is not "far-flung," but rather limited to a few states.
-Many of the circuits have different interpretations of what test to use here (business activities, etc)
-Nerve Center is the best approach, for 3 reasons.
  1. The statute's language supports the approach
    1. The statute's text deems a corporation a citizen of the "State where it has its principal place of business"
    2. "Place" is singular, "Principal" requires the main, prominent, or leading place to be chosen
    3. Because "place" follows "state where" means that the "place" is a place within a state. It is not the state itself
    4. A corporations "nerve center" is a single place (usually HQ).
  1. Administrative simplicity is a major virtue in a jurisdictional statute
    1. Complex jurisdictional tests complicate a case, eating up time and money as the parties litigate, not the merits of their claims, but which court is the right court to decide those claims.
    2. Complex tests produce appeals and reversals, encourage gamesmanship, and diminish the likelihood that results and settlements will reflect a claim's legal and factual merits.
    3. Simple Jurisdictional rules promote greater predictability
  1. The statute's legislative history, for those who accept it, offers a simplicity-related interpretive benchmark.
    1. Initial version of its proposal suggested a numerical test.
    2. The history suggests that the words "principal place of business" should be interpreted to be no more complex than the initial "half of gross income" test.
-There will be hard cases under this test. For example, a corporation may divide their command and coordinating functions over several states.
-The test will nonetheless point courts in a single direction
-This test can also produce results that will seem to cut against the rationale for 28 U.S.C. 1332.
-For example, if the bulk of a company's business activities visible to the public take place in new jersey, while its top officers direct those activities just across the river in NY, the "principal place of business" is NY
-While such anomalies will arise it is a necessary complication in exchange for having a clearer rule.
-The burden of persuasion for establishing diversity jurisdiction remains on the party asserting it.
-Defendant's unchallenged declaration suggests that its center of direction, control and coordination, its "nerve center" and its corporate headquarters are on and the same, located in New Jersey, and not California
Conclusion: Yes, Vacate and remand.

-Plaintiff/Respondent: Melinda Friend and John Nhieu, California citizens
-Defendant/Petitioner: Hertz Corporation

-Sept 2007: Plaintiffs sue Defendant in California state court.
-Sought damages for claimed violations of California's wage and hour laws
-Requested relief on behalf of a potential class composed of California citizens who had allegedly suffered similar harms.
-Hertz filed a notice seeking removal to a federal court, claiming that the plaintiffs and it were citizens of different states.
-Plaintiffs claimed that Hertz was a California citizen, like themselves, and thus diversity jurisdiction was lacking.

-Hertz: Submitted a declaration by an employee relations manager that sought to show that Hertz's "principal place of business" was in New Jersey, not California.
-Showed that Hertz operated facilities in 44 states ;and that California had about 12% of the nations population.
-Has 273 of 1,606 car rental locations
-2,300 of its 11,230 full-time employees
-$811m of its $4,371b in annual revenue
-3.8m of its approximately 21m annual transactions
-Also stated that the "leadership of Hertz and its domestic subsidiaries" is located at hertz's "corporate headquarters" in Park Ridge, New Jersey. It's "core executives" and administrative functions are carried out there and "to a lesser extent" in Oklahoma City. Also, that it's "major administrative operations are found" at those two locations

Procedural History:
-District Court: Accepted Hertz's statement of facts as undisputed. Concluded that, given those facts, Hertz was a citizen of California.
-Applied 9th circuit precedent, which instructs courts to identify a corporation's "principle place of business" by first determining the amount of a corporation's business activity State by State.
-If the amount of activity is "significantly larger" or "substantially predominates" in one State, then that state is the corporation's "principle place of business."
-If there is no such state, then the "principle place of business" is the corporation's "nerve center"
-Court of Appeals: Affirmed
-SCOTUS: Vacate and Remand

Monday, February 21, 2011

Strict Liability vs. Negligence

    Hammontree v. Jenner:
    Court of Appeal of California (1971)
    20 Cal.App.3d 528, 97 Cal.Rptr. 739
    Issue: Did the judge err in refusing the summary judgment, directed verdict, and jury instructions?
    Rule: Negligence, Strict Liability
    -Defendant was driving his 1959 Chevrolet home from work; at the same time the plaintiff was working in the garage owned by her husband.
    -Defendants car crashed through the wall of the shop, striking the plaintiff and causing damages to the shop
    -Defendant contended that he became unconscious during an epileptic seizure, causing him to lose control of the vehicle. He stated that he did not recall the accident, and his last recollection before it was him leaving a stop light after his last stop. His first recollection after the accident was being taken out of his car
    -At Trial Court:
    -Plaintiffs move for summary judgment
    -Plaintiffs move for directed verdict on pleadings and opening arguments
    - Plaintiff withdrew the claim of negligence, then after both parties had rested, the plaintiffs objected to the giving of jury instructions on negligence, and rested solely on the principle of absolute liability. The plaintiff then waived their opening and closing jury arguments.
    -Precedent has held that liability of a driver suddenly stricken by an illness rendering him unconscious is negligence, not absolute liability (Waters v. Pacific Coast; Ford v. Carew & English; Zabunoff v. Walker)
    -Maloney v. Rath: Only the legislator can assign strict liability for drivers, if the courts did, problems would arise
  1. Without substantial detail, there would be much confusion about the automobile accident problem
  2. Settlement and claims adjustment procedures would become chaotic until new rules were worked out case-by-case
  3. Hardships of delaying compensation would be intensified
  4. -Plaintiff contends that negligence is outdated in light of new principles imposing liability on manufactures, retailers, and all distributive and vending elements and activities which bring a product to the consumer to his injury
    -Theory upon which manufacturer liability is predicated is that they are engaged in the business of distributing goods to the public and are an integral part of the overall producing and manufacturing enterprise that should bear the cost of defective parts
    -Plaintiff argues that insurance carriers should be the ones to bear the cost of injuries to innocent victims on a strict liability basis.
    -Plaintiff argues that only the driver affected by a physical condition, which could suddenly render him unconscious and who is aware of that condition can anticipate the hazards and foresee the dangers involved in the operation of a motor vehicle
    -Proposed Instructions?:Liability of those who by reason of seizure or heart failure or some other physical condition lose the ability to safely operate a motor vehicle and cause injury to an innocent person should be held liable under strict liability.
    -Also wrong because a driver who is stricken by an illness or physical condition which he had no reason whatever to anticipate and of which he had no prior knowledge
    Conclusion: No, negligence must be shown

-Plaintiffs:  Injured parties of an automobile accident, owners of the shop where the accident occurred (husband and wife)
-Defendant: Driver of the vehicle, a known epileptic

-Physical to Maxine (plaintiff), and damages to the shop owned by her husband (plaintiff)

Procedural History:
-Trial court: Judgment entered on a jury verdict in favor of defendant
-Court of Appeals: Affirmed

Relief Sought:
-Damages for personal injury and property damage

Medical History:
-Prior to 1952: Examined by neurologist, who determined that the condition could be controlled by medication
-1952: Suffered a seizure while fishing
-1952: Dr. Hyatt diagnosed his condition as 'petit mal seizure' and kept him on the same medication
-Thereafter, saw Dr. Hyatt every 6 months and then on a yearly basis until 1967
-1953: Had another seizure and was told he was an epileptic
-1954: Dr. Kershner prescribes Dilantin
-1955: Dr. Hyatt prescribes Phelantin
-1955-67: Defendant takes Phelantin on regular basis
-1955: DMV advised that defendant was an epileptic and placed him on probation, under which every 6 months he had to report to the Doctor, who was required to advise in writing of the defendants condition
-1960: Probation changed to a yearly basis.

Husbands Loss: Loss of Consortium (loss of services of wife-- either working or at the house)

Res ipsa loquitur: Refers to the situation where it is assumed that the person was negligent, because the accident was the sort that wouldn’t occur unless someone was negligent.

Motion for Summary Judgment:  Ends the case if:
No dispute for any material fact, and that given the material facts that everyone agrees-- the law is that the party that raises the motion will win.
-Judgment that is given immediately, before there is any trial at all

Affidavit: Sworn statement as to the facts

Motion for directed verdict:
-After the plaintiff has put on evidence, defendant moves for a directed verdict on the grounds that there is insufficient evidence to convince any reasonable jury to find in favor of the plaintiff.
-After the defendants made his motion and lost, the defendant will put on evidence. The plaintiff moves on the ground that any reasonable person must find the facts as claimed to be.

-Following precedent
-If to adopt Strict liability, it would cause confusion, uncertainty, lead to chaos
-Legislator could do it better
-Instruction plaintiff suggested was wrong anyways- no exception

Is negligence a required element of a cause of action against drivers for injuries arising out of  an automobile accident on the plaintiffs property, caused by sudden incapacity of the defendant, who knew that he had the condition that lead to the incapacity, but had no reason to foresee the particular attack

Sunday, February 20, 2011

Test to Determine Personal Jurisdiction

Here it is! The unrequested test for determining whether a court can exercise jurisdiction over a person (civil cases):


  1. Long Arm Statute Analysis (Allow for Jurisdiction/Doesn't?)
  2. Due Process
    1. Minimum Contacts
      1. Foreseeability / Purposeful Availment
        1. International Shoe: Must have minimum contacts, so that maintenance of the suit does not offend traditional nations of fair play and substantial justice.
        2. World Wide Volkswagen: Foreseeability: Defendant should have reasonably anticipated being haled into court there. Purposeful Availment: Defendant does something to have clear notice of being subject of suit there.
          1. Foreseeability alone is not sufficient
        1. Asahi: Stream of Commerce Plus (O'Connor)
        2. Shaffer: Assertions of state court jurisdictions must pass the international shoe standard, when the property is not related to the litigation.
        3. Burger King: Extended contractual relationship established minimum contacts, no physical presence need ever occur in the state.
        4. Burnham: Physical presence in the state is usually always sufficient (always: scalia, usually: brennan).
    1. Relatedness
    2. Fairness
      1. Burden on the Defendant:
        1. Asahi: Would be a great burden to litigate a dispute between a Japanese and Taiwanese corporation in California.
        2. Burger King: If the burden on the defendant is large, a change of venue can be granted to resolve the issue
      1. Interest of the Forum State:
        1. Asahi: Forum state has little interest in litigating a dispute between two foreign corporations
      1. Plaintiffs interest in Obtaining Relief:
        1. Asahi: The plaintiff was no longer a party to the action, so it had no interest in where the remaining suit was settled.
      1. Judicial Efficiency of Resolution of Disputes
      2. Shared interests of several states in furthering substantive social policies:

Saturday, February 19, 2011

Contracts: Bargain Theory vs. Gratuitous Promise

Hamer v. Sidway: (Benefit vs. Detriment) (BARGAIN vs. GRATUITOUS PROMISE)
Court of Appeals of New York,
124 N.Y. 538, 27 N.E. 256 (1891)
Issue: Was there valid consideration?
Rule: Consideration, Bargain, Statute of Frauds
Application: Oral promise, made from an uncle to his nephew.
-Defendant argues that the contract was without consideration, and therefore invalid. Further argues that refraining from alcohol and tobacco was for the best of the promisee, independent of the promise.
-A promise can be an abandonment of a legal right, or refraining from exercising a legal right.
-The nephew refrained from exercising his legal right (to drink alcohol and to smoke tobacco), and therefore was a valid promise
-This contract falls under the statute of frauds, but the uncle waived , which he did in his letter and oral statements subsequent to the date of final performance on the part of the promisee.
Conclusion: Yes

Supreme Court Opinion:
-There was not valid consideration, because the promise was only for a gift
-For years before, the deceased had talked about making a gift to the nephew, and by withholding it after the nephew's 21st birthday, it is clear that it was a gift, and not a valid contract.

William E. Story Sr. promised his nephew that if he refrained from drinking, using tobacco, swearing and playing cards or billiards for money until he was 21, he would pay him $5,000.
-After his 21st birthday, the nephew sent a letter to the uncle, to which the uncle responded, saying the money was in a bank account, and would be delivered to him once he thought the nephew was ready to handle it.
-The uncle then died 12 years later, without having turned over the money.

Why did the uncle make this promise?
-Can argue that it was in exchange for the nephews detriment

Friday, February 18, 2011

Landlord Tenant Law Notes

Reste Realty Corp v. Cooper:
Supreme Court of New Jersey, 1969
251 A.2d 268
Issue: Did the flooding violated the express covenant in the lease of quiet enjoyment such that it would constitute constructive eviction, and if so, was defendants covenant to pay rent dependant on the quiet enjoyment covenant?
Rule: Constructive Eviction: Serves as the substitute for dependency covenants; actions of a landlord that so materially disturb or impair a tenant's enjoyment of the leased premises that the tenant is effectively forced to move out and terminate the lease without liability for any further rent.
Application: Lease stated that the defendant accepted the place in its present condition.
-Defendant relied on the premise that the problem had been corrected in signing the new lease
-This latent defect was external, based on the driveway and the foundation, and not part of the premises.
-Plaintiff breached the express (though it could be implied) Covenant of Quiet Enjoyment.
-Plaintiff argues that by remaining so long, the defendant gave up her right to constructive eviction.
-"a reasonable time" depends on the circumstances.
-Trial court found that the vacating occurred within a reasonable time.
Conclusion: Yes, was constructive eviction which relieved defendant of the liability for rent.

-May 1958: Defendant leases commercial office space.
-Defendant found that due to an improperly graded driveway running alongside the building, the space became flooded every time it rained.
-Donnigan, an officer in the corporate owner and resident manager, would clean up the water each time it rained.
-Donnigan corrected the problem
-April 1959: Defendant and plaintiff enters into a new 5 year lease.
-Donnigan told Wittman about the flooding and how to correct it.
-March 1961: Donnigan dies, after flooding starts again, no one responds to defendants complaints
-December 20, 1961: Meeting gets flooded, defendnat is forced to flee to nearby inn.
-December 21, 1961: Defendant asks that it be cleaned up, nothing happens.
-December 30, 1961: Defendant notifies landlord, and vacates premises.
-Jan 19, 1962: Plaintiff acquires the building
-March 1964: Second lease would have expired
-November 1964: Plaintiff commences action.

Thursday, February 17, 2011

Civil Procedure Notes: Intro to Jurisdiction

International Shoe Co. v. Washington:
326 U.S. 310 (1945)
Issue: Did International's activities in Washington make it subject to personal jurisdiction in Washington Courts?
Rule: Due process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend "traditional notions of fair play and substantial justice"
Application: A casual presence of a corporation or its agent in a state in single or isolated incidents is not enough to establish jurisdiction.
-The activities carried on by International in Washington were systematic and continuous rather than irregular or casual
-The defendant received the benefits and protection of the laws of the state and is subject to jurisdiction there.
-While there are cases that support International's contention that continuous activity of some sorts within a state are not enough to support the demand that the corporation be amenable to suits unrelated to that activity, there have been instances in which the continuous corporate operations within a state were though so substantial and of such a nature as to justify suit against it on causes of action arising from dealings entirely destiny from those activity.
-Whether due process is satisfied must depend upon the quality and nature of the activity in relation to the fair and orderly administration of the laws which it was the purpose of the due process clause to insure
-Unable to conclude that the service of the process within the state upon an agent was not sufficient notice of the suit, nor was the mailing of the notice not reasonably calculated to apprise appellant of suit
Conclusion: Yes

Concurrence: A state, at the very least, has power to tax and sue those dealing with its citizens within its boundaries
-The Federal Constitution leaves to each state, without any "ifs" or "buts," a power to tax and to open the doors of its courts for its citizens to sue corporations whose agents do business in those states.

International Shoe:
-Delaware Corporation, with principle place of business in St. Louis
-No offices in the state of Washington
-No contracts for sale made there
-Did not keep merchandise in Washington and did not make deliveries of goods in interstate commerce originating from the state.
-Employed 11-13 salesmen for 3 years, who resided in Washington
-Salesmen did not have authority to make contracts or collections
-Were compensated by commission for each year, totaling more than $31,000
-Occasionally rented permanent sample rooms, for exhibiting samples, in business buildings
-Prices, terms, and acceptance or rejection of footwear orders were established through St. Louis

-Was personally served upon a sales solicitor employed by International, in WA
-A copy was mailed to International in St. Louis

Supreme Court of Washington:
-The regular and systematic solicitation of orders in the state by International's salesmen, resulting in a continuous flow of product into the state, was sufficient to constitute doing business in the state so as to make International amenable to suit in its courts
-Also that there were sufficient additional activities shown to bring the case within the rule frequently stated, that solicitation within a state by the agents of a foreign corporation amenable to suit brought in the courts of the state to enforce an obligation arising out of its activities there
-Additional activities found in: Salesmen's display of samples in permanent display rooms, salesmen's residence within the state, continued over a period of years, all resulting in a substantial volume of merchandise regularly shipped by international to purchasers within the state
-Still thinking about (Present/Consent/Property) method of personal jurisdiction