Corporate Counsel Center Real Estate Newsletter

REAL ESTATE CASES

U.S. 7th Circuit, May 16, 2008
General Auto Serv. Station v. City of Chicago, No. 05-2515, 06-2672
In a 42 U.S.C. section 1983 action against the City of Chicago over the removal of an advertising sign, judgment for defendant is affirmed where: 1) as plaintiff's predecessor failed to obtain certain requisite permits in the 1960s and 70s, the sign was not a legal land use that gave rise to a protected property interest; 2) absent such a vested property right, a substantive due process challenge to zoning ordinance amendments failed; 3) plaintiff failed to show how the First Amendment was implicated by the content-neutral provisions of a grandfather provision; and 4) a procedural due process claim was waived. Read more...

Supreme Court of Texas, May 16, 2008
Canyon Reg'l Water Auth. v. Guadalupe-Blanco Auth., No. 06-0873
In a suit over an easement and the ability of petitioner-state water authority to condemn an easement for the construction and operation of a second intake and pipeline, judgment is affirmed in part and reversed and remanded in part where: 1) the easement agreement does not convey to the petitioner sufficient rights to construct a second water intake and pipeline; but 2) the prospective easement, which restricts access to only a small portion of the lake, does not practically destroy the lake's public recreational use. Read more...

Supreme Court of Texas, May 16, 2008
City of Dallas v. Reed, No. 07-0469
Judgment for plaintiff in a premises liability case is reversed and the case dismissed where a two-inch difference in elevation between traffic lanes on a roadway does not constitute a special defect as a matter of law under the Texas Tort Claims Act because: 1) it does not pose an unusual or unexpected danger to the normal users of the road since such variations are to be expected by normal deterioration; and 2) it is not a premises defect claim since there is no evidence that defendant willfully or negligently caused plaintiff's injuries, or that defendant was aware the two-inch drop off created unreasonable harm. Read more...

U.S. 4th Circuit, May 19, 2008
AES Sparrows Point LNG, LLC v. Smith, No. 07-1615
Summary judgment for defendants in a case alleging preemption by the Natural Gas Act of Baltimore County's Bill 9-07 prohibiting the siting of any liquefied natural gas terminal in the County's Chesapeake Bay Critical Area is reversed where: 1) Bill 9-07 is an "amendment" of Maryland's Coastal Zone Management Plan (CMP) because it imposes a categorical ban on LNG terminals that the CMP did not previously contain; and 2) Bill 9-07 is preempted by the NGA until the National Oceanic and Atmospheric Administration approves the bill. Read more...

U.S. 6th Circuit, May 19, 2008
Giant Eagle, Inc. v. Phar-Mor, Inc., No. 06-4142, 06-4188
In a bankruptcy proceeding, an order disallowing appellant's claim for future-rent damages arising from bankrupt lessee's rejection of a lease for personal property is reversed and remanded where the proper calculation of damages was to calculate the benefit of the bargain as of the date of the filing petition, and from there, determine actual damages based on state law by reducing the benefit of the bargain calculation by the amount actually or reasonably mitigated. An order granting appellant administrative expenses in the form of post-petition rent payments is affirmed where there was no abuse of discretion in requiring appellee to pay expenses from the date of appellee's filing of the petition to the date of the rejection of the lease. Read more...

Supreme Court of California, May 19, 2008
City of Santa Monica v. Gonzalez, No. S145571
An appointment of a receiver and a decision by the plaintiff to demolish the defendant's house and sell the property as authorized under sections 17980.6 and 17980.7 is affirmed where: 1) the defendant was statutorily entitled to notice that failure to correct the substandard condition of his property might result in the appointment of a receiver and the plaintiff duly afforded that notice; 2) there was no violation of due process since the defendant had been on notice for years regarding the uninhabitable condition of his property and the various code violations and had been given ample opportunity for a hearing and to correct the violations; 3) the court adopts a standard of review for orders authorizing the receiver to contract for demolition requiring the court’s sound discretion exercised in view of all the surrounding facts and circumstances and in the interest of fairness, justice and the rights of the respective parties; and 4) the plaintiff did not abuse its discretion when it chose to demolish the house. Read more...

U.S. 10th Circuit, May 20, 2008
Sunrise Valley, LLC v. Norton, No. 06-4188
In a quiet title action brought under the federal Quiet Title Act, summary judgment for defendants is affirmed where: 1) sand, gravel, and rock are minerals in which the government has an express reservation on land patents issued under the the Stock-Raising Homestead Act; and 2) the court is bound to apply the precedent in Watt v. Western Nuclear, Inc. 462 U.S. 36 (1983) since the case is governed by the Stock-Raising Homestead Act. Read more...

U.S. 5th Circuit, May 20, 2008
Southwestern Bell Tel., LP v. City of Houston, No. 07-20320
In a dispute over an ordinance that allegedly violates the Federal Telecommunications Act (FTA), which proscribes state and local governments from prohibiting the ability of any entity to provide telecommunications services, dismissal of plaintiff's claim is affirmed where: 1) section 253 of the FTA does not create an enforceable private right pursuant to section 1983 since it does not unambiguously establish one, and it contains a comprehensive enforcement scheme for violations of FTA section 253; and 2) the ordinance is neutral and non-discriminatory, and thus falls within the safe harbor provision of section 253(c) and is not preempted by the FTA. Read more...

U.S. 6th Circuit, May 20, 2008
Sensations, Inc. v. City of Grand Rapids, No. 06-2168, 06-2508, 06-2510, 07-1504
In a suit seeking a preliminary injunction against an ordinance regulating sexually oriented businesses alleging violations of First Amendment rights, judgment on the pleadings and grant of attorney's fees for non-city defendants is affirmed as to the preliminary injunction, but reversed as to the attorneys' fees where: 1) the court did not convert defendant's motion for judgment on the pleadings into a motion for summary judgment; 2) plaintiffs were not entitled to discovery that might yield evidence disproving negative secondary effects at the local level; 3) the ordinance is constitutional since it was within the city's authority to regulate sexually oriented businesses in order to control the secondary effects of such businesses; 4) a mandatory buffer between performer and audience and a no-touching rule did not violate the right of free association; 5) an offer by private citizens to fund the defense of an ordinance, and acceptance by a local governing body, does not necessarily establish a symbiotic relationship for purposes of a section 1983 claim; and 6) for purposes of attorney's fees, the issue of the symbiotic relationship was an unresolved point of law. Read more...

California Appellate Districts, May 20, 2008
Devonwood Condominium Owners Ass'n v. Farmers Ins. Condominium Owners Ass'n, No. A116302
In a fire insurance policy coverage dispute concerning the effects of an appraisal award issued by an appraisal panel pursuant to the policy's provisions, judgment in favor of insured is vacated and remanded where the lower court's judgment did not conform to the appraisal award upon which it was based, in violation of Code of Civil Procedure section 1287.4. Read more...

U.S. 8th Circuit, May 21, 2008
Jackson v. US, No. 07-1454
Partial denial of defendant's motion for return of property under Fed. R. Crim. Pro 41(g) is affirmed in part and reversed in part where: 1) evidence indicated that another party had a claim of ownership interest adverse to defendant's stereo/video equipment and clothing found in his girlfriend's vehicle at the time of arrest; but 2) defendant was entitled to return of custom wheels installed on his girlfriend's vehicle as, evidence did not suggest that the property was abandoned, intended as a gift, or integrated under Missouri's doctrine of accession. Read more...

U.S. Fed. Circuit Court of Appeals, May 21, 2008
1-10 Indus. Assoc., LLC v. US, No. 2007-5124
In a contract dispute, an order imposing sanctions on the government's attorney for violations of counsel's duty of candor to the court under Rule of the United States Court of Federal Claims 11(b) is reversed and the case remanded where: 1) failure to inform the sanctioned attorney that his conduct in a prior case provided evidence of a pattern of misconduct constituted reversible error; and 2) a sanctioned attorney's mistake as to choice of theory or miscalculation of facts necessary to sustain the theory does not necessarily equate with breach of the duty of candor when the attorney does not make any affirmative representation based on the facts. Read more...

U.S. Fed. Circuit Court of Appeals, May 22, 2008
W. Shoshone Nat'l Council v. US, No. 2007-5020
In a suit seeking to invalidate a 1977 Indian Claims Commission (ICC) judgment awarding compensation for the taking of plaintiffs' lands, as well as additional compensation and other relief under the Treaty of Ruby Valley of 1863, summary judgment for the government is affirmed where: 1) a claim that the ICC allegedly denied plaintiff due process in reaching its judgment was untimely, and thus the Court of Federal Claims lacked subject matter jurisdiction; and 2) a claim for $14 billion as prejudgment interest from the stipulated date of the taking (1872) until the time of the award, failed as the Treaty of Ruby Valley did not recognize that plaintiffs have title in the disputed territory. Read more...

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REAL ESTATE CASES