Legal Profession Blog

Sacked!

The Nevada Supreme Court has held that Steelers quarterback Ben Roethlisberger failed to establish a basis for a change of venue from one Nevada county to another:

The record contains no evidence demonstrating that the convenience of the witnesses compels a change in venue or that holding the trial in Douglas County rather than in Washoe County would promote the interests of justice.  The difference in travel times to the courts in either county are, for many witnesses, relatively minimal.  And while Roethlisberger may receive a speedier trial in Douglas County, it is not an abuse of discretion for the district court to conclude that the ends of justice are adequately served by keeping venue in Washoe County and would not be furthered by a change of venue to Douglas County.  We conclude that the district court did not abuse its discretion in denying Roethlisberger’s motion to transfer venue...

            Accordingly, because Roethlisberger lacked standing to demand that venue be changed under NRS 13.040 and has shown no abuse of discretion with regard to the district court’s NRS 13.050(2) determination, we affirm the district court’s order refusing to change venue.

The litigation involves tort claims against nine defendants. (Mike Frisch)

King Of The Wild Frontier

The Tennessee Court of Appeals has affirmed an order directing the person who had possession of Davy Crockett's original 1805 certificate of marriage to return it to Jefferson County. The license had been removed from the county courthouse in the 1930s:

Questioning the historical prominence of David Crockett around the time the license was taken, Mrs. Smith argues in her brief that Crockett was “largely forgotten” by the late 19th century but his legend was reborn when Walt Disney made a 1950s television series about the Tennessean. Assuming arguendo that Mrs. Smith is correct, she has stated in the record that her uncle, Harry Vance, was an “admirer of David Crockett” and a “David Crockett enthusiast” and that her father, Paul Vance, had an interest in David Crockett. Based on her own admission, the two individuals primarily responsible for removing the subject marriage license from the Jefferson County courthouse in the 1930s or 1940s were certainly aware of David Crockett and most likely recognized his historical significance. Accordingly, we reject this issue as lacking merit.

The license (the marriage never took place) apparently had been removed by the Mrs. Smith's uncle (a county bigwig) and given to her father. The court here found the circumstances of the removal lost to history but that the removal was an unlawful conversion of county property. The court noted that the county had kept it for 130 years or so.

The existence of the document came to light when Ms. Smith contacted the county historical society in the mid to late 1990s.  Eventually, a demand was made and Mrs. Smith refused to return it. This litigation followed.

The court found no error in the failure to admit Mrs. Smith's interview on Antiques Roadshow. The court also affirrmed contempt findings against her.

The court found the trial court could take judicial notice that Crockett had been a congressman from that district and had died at the Alamo.

Mrs. Smith returned the license in February 2010.

The trial court's view of the proffered explanation of the removal: "[T]hat dog just won't hunt." (Mike Frisch)

 

A Trip To The Dentist Leads To A Trip To Prison

The Indiana Supreme Court Court reduced by half a forty year sentence imposed on a defendant who had fallen asleep in a dentist's office (either drunk or drugged) while waiting for an appointment. The police were called after staff was unable to wake him. A weapon was found along with drug paraphernalia.

He was charged and convicted of felon in possession of a firearm and being a habitual offender.

The court found that twenty years was an "adequate response" to the situation. (Mike Frisch)

Meat Samosa Litigation Continues

The New Jersey Appellate Division has reversed in part the grant of summary judgment to a caterer  defendant on the following allegations:

Plaintiffs, sixteen Hindu vegetarians, appeal from an order of summary judgment entered against them dismissing their action premised upon allegations of negligence, negligent infliction of emotional distress, consumer fraud, products liability, and breach of express and implied warranties arising when defendant Asha Enterprises, L.L.C. d/b/a Moghul Express & Catering Co. (Mogul Express), an Indian restaurant, filled their order for vegetarian samosas with meat-filled samosa causing spiritual injuries resulting in damages.

The court held that pre-discovery judgment could not be granted on the breach of express warranty claim. (Mike Frisch)

Ohio Rejects Same-Sex Custody Rights By 4-3

From the web page of the Ohio Supreme Court:

The Supreme Court of Ohio today upheld lower court rulings that a biological mother who acknowledged her same-sex partner as a “co-parent” of her daughter while the two women were in a relationship did not permanently give up her sole custody of the child to create legal shared custody with the partner.

In a 4-3 decision authored by Justice Robert R. Cupp, the Court affirmed a 1^st District Court of Appeals ruling that competent, credible evidence supported the Hamilton County Juvenile Court’s judgment that although Kelly Mullen of Cincinnati shared the responsibilities of parenting her daughter Lucy with former partner Michele Hobbs while the women lived together, Mullen’s actions did not confer on Hobbs a permanent right to shared custody of Lucy after her relationship with Mullen ended...

Justice Cupp’s opinion was joined by Justices Evelyn Lundberg Stratton, Terrence O’Donnell and Judith Ann Lanzinger.  Chief Justice Maureen O’Connor and Justice Paul E. Pfeifer entered separate dissenting opinions.

In her dissent, which was joined by Justice Yvette McGee Brown, Chief Justice O’Connor wrote that because the statutory and case law applicable to Hobbs’ claim is well established, and the majority decision established no new governing principle, she would dismiss the appeal as having been improvidently accepted for review.

The opinions are linked here. (Mike Frisch)

"Your Lyrics?"

The Maryland Court of Appeals has held that a trial court does not have the discretion to permit a state's attorney to ask repetitive, prejudicial and harassing questions of a criminal defendant.

The defendant was charged with attempted murder. He was asked on cross-examination a series of ten questions about the lyrics of a rap song he had penned. Each question repeated a line from the song and then "Your lyrics?"

The court concluded that the questions served no purpose other than to suggest a propensity for violence on the part of the defendant.  (Mike Frisch)

Courts Don't Let Friends Drive Drunk

A person who had lawfully consumed alcoholic beverages (two tall cans of beer) at her sister's house decided that she was too intoxicated to drive home. She asked her brother's friend for a ride. He agreed.

En route, the car was stopped because a license plate light was out. The driver did not have a valid license. The woman admitted to the police that she was too intoxicated to drive herself home.

She was charged and convicted of public intoxication. On appeal, she pressed a public policy defense that her conduct had been responsible and should not be considered criminal. The Indiana Supreme Court rejected the argument and affirmed the conviction.

Justice Rucker dissented and would overrule a prior case that held the inside of a car to be a public place for purposes of the public intoxication statute. He agreed with the appellant that she should not be convicted for doing the responsible thing. (Mike Frisch)

Where Pheasants Sleep

The North Dakota Supreme Court has held that double jeopardy prevents a retrial of a DUI case. The court had declared a mistrial after the jury was sworn because:

After the jury was empaneled and sworn, the trial court called a brief recess and the attorneys left the courtroom. At some point, Day [the defendant] was alone in the courtroom with the jurors and the bailiff. When the attorneys returned to the courtroom, they witnessed what appeared to be a conversation between the bailiff, the jurors, and Day. The trial court returned to the courtroom and read the opening instructions. After the instructions were read, the State moved for a mistrial based on the communication between the bailiff, the jurors, and Day.

The trial court, attorneys, and Day met outside the presence of the jury, and Day objected to the State's motion and requested the bailiff testify about the communication. The bailiff testified that some of the jurors were talking about whether pheasants sleep in trees, Day said pheasants often sleep in trees, and the bailiff told the jury about seeing a turkey in a tree. The State renewed its request for a mistrial. Day opposed the motion and requested a curative instruction. The court granted the State's motion for a mistrial and excused the jury.

The court here held that the trial court failed to explore alternatives to the grant of a mistrial. (Mike Frisch)

No Defense Of Assisted Suicide

The South Dakota Supreme Court has held that a person who kills a friend who wished to die cannot offer an "assisted suicide" defense to the charge of first degree murder. The friend had a failed suicide attempt. He was addicted to drugs, feared a likely return to prison, and was terminally ill. They went to a remote location where the defendant shot his friend at close range. The body was found by fishermen. (Mike Frisch)

And Take Your Parents With You

The Vermont Supreme Court has held that a litigant had no right to bury the cremated remains of his parents in a hilltop cemetery on the farm formerly owned by his family. The court looked to the common law of family gravesites (which I believe my professor did not cover in teaching me the common law antecedents of civil procedure).

The facts:

This case concerns the use of a hilltop cemetery on a farm in Hartland, Vermont.  The petitioner, J. Michel Guite, now owns the farm property.  He claims that the cemetery plot is owned by heirs of the Aldrich family, who settled the property as a farm in approximately 1775 and remained there until selling the farm in 1853.  Respondent’s family purchased the farm property in 1950 and owned it until 1983.  Prior to selling the property, respondent, Jerome King, buried the cremated remains of his parents in the hilltop cemetery.  Respondent claims that the Aldrich family reserved only an easement in the cemetery plot.  Thus, he contends title to the plot remained with the farm so that he could use it to bury his parents and the remains cannot be moved.  The trial court adopted respondent’s theory and denied the petition.  We conclude that petitioner’s theory is correct and reverse.

The material facts are not in dispute.  During their ownership and use of the Hartland farm from approximately 1775 until 1853, the Aldrich family and its descendants buried at least three family members in the hilltop cemetery.  When Aldrich family descendants Jude and Rebecca Adams sold the entire farm property in 1853, the deed included the following language:  “We . . . do freely give grant sell convey and confirm . . . a certain piece of land lying and being in Hartland . . . . Possession to be given the first day of April 1854.  Excepting out of the above described premises 41 feet of ground by 27 feet which is the burying ground on said premises.”  (Emphasis added.)  The record contains no evidence that the Adams’s or their heirs recorded a separate deed to the cemetery plot, nor any evidence that the family ever paid property taxes on the plot.  The cemetery exception that began with the 1853 deed was included in all subsequent deeds transferring the farm property.

In 1950, respondent’s parents purchased the farm and lived there for about thirty years.  In 1981, after his parents passed away, respondent buried both of their cremated remains in the cemetery.  When respondent carried out this burial, he neglected to obtain any burial permits from the town.  He did not seek permission to use the hilltop cemetery from any remaining Aldrich family descendants.  In 1983, respondent sold the entire Hartland farm property on behalf of his family’s trust.

The holding:

In Harding, we ruled that where we could not ascertain the true intent of the parties to the original deed, and in the absence of a “clearer expression of intent,” we would rely only upon the common law of family gravesites, which creates an easement.  2005 VT 24, ¶ 18.  The deed in this case contains the necessary clearer expression of intent.  Accordingly, we find that the 1853 deed excepted from its grant the 41’ by 27’ burial plot, and the plot is owned in fee simple by the heirs of the Aldrich family.  Thus, it was never owned by the King family, and they had no right to bury the cremated remains in it.

(Mike Frisch)

Retired Prosecutors Can't Pack Heat In New Jersey

The New Jersey Appellate Division affirmed an order denying a handgun permit to a retired former assistant prosecutor and deputy attorney general. Statuatory provisions that allow retired law enforcement officers to carry a handgun do not apply to former prosecutors. (Mike Frisch)

The Law Of MySpace

The Maryland Court of Appeals has reversed a criminal conviction because "[p]ages allegedly printed from MySpace were not properly authenticated...because someone other than the purported creator could have created the profile and also posted the comment in question, when the State identified only the date of birth of the creator and her visage in a photograph on the site."

The charges involved a death in Cecil County. The MySpace profile at issue allegedly belonged to the defendant's girlfriend, who testified in the case and was alleged to have threatened a witness as "Sistasouljah." The attempt to authenticate came not during cross-examination, but through a police witness. The printed page said:

FREE BOOZY!!!! SNITCHES GET STITCHES !! U KNOW WHO YOU ARE!!

Justice Harrell, joined by Justice Murphy, dissented. (Mike Frisch)

Absolute Privilege For Internet Republication

The Maryland Court of Appeals held today that lawyers who publish to the press copies of their state complaint, make oral statements of like kind to the press, and republish pleadings on the internet are protected by an absolute privilege where (1) the reasonably contemplated proceeding satisfies the two-part test of a 1981 Maryland case; (2) the lawyers statements were made, "at least in part, in increase awareness of a proposed class action suit..." and (3) the "statements are related reasonably and rationally to the subject matter of the contemplated proceeding."

The plaintiff in this defamation litigation was not a named defendant  but had been identified as involved in a mortgage scam. (Mike Frisch)

No Substantial Need

A trial court order granting discovery against a plaintiff was reversed by New York Appellate Division for the First Judicial Department:

In this action for, among other things, conversion and intentional infliction of emotional distress, plaintiff alleges that defendant, a former employee of plaintiff's husband, retained, without permission, a copy of a CD containing seminude photographs of plaintiff taken by her husband during their honeymoon. Plaintiff further alleges that defendant refused to return the CD and photographs unless plaintiff's husband paid defendant $2.5 million to settle her sexual harassment claims brought against plaintiff's husband and his brother.

Supreme Court improvidently exercised its discretion in ordering plaintiff to comply with the outstanding discovery demands. With respect to defendant's demand for access to plaintiff's social networking accounts, no showing has been made that "the method of discovery sought will result in the disclosure of relevant evidence or is reasonably calculated to lead to the discovery of information bearing on the claims" (citations omitted) Because plaintiff admits that she has copies of the photographs contained on the subject CD, defendant has also failed to show that she needs access to plaintiff's hard drive in order to defeat plaintiff's conversion claim. Nor has defendant shown that broad discovery concerning plaintiff's finances, education, immigration status, and educational background is "material and necessary" (CPLR 3101[a]).

With respect to defendant's demand for materials prepared in anticipation of litigation, defendant has failed to show "substantial need" for the materials or that she is "unable without undue hardship to obtain the substantial equivalent of the materials by other means" (citation omitted) Further, defendant is not entitled to privileged communications between plaintiff and her prior counsel (see CPLR 4503[a]).

Discovery of materials concerning plaintiff's family and her husband's business should be obtained through nonparty discovery pursuant to CPLR 3101(a)(4).

Defendant's remaining discovery demands are either overbroad or irrelevant.

(Mike Frisch)

Other Plans For Mother's Day

The New Jersey Appellate Division reversed a domestic violence restraining order filed by a mother against her son. The court concluded  that the son's thefts of his mother's property did not prove an intent to "seriously annoy" the mother:

The record does not provide evidence that defendant acted with any purpose in stealing from his mother other than to appropriate her property for his own use.

Another point

Under the facts here, the only communication that could arguably support a finding of harassment...occurred when the defendant called his mother a "senile old bitch." As the court found, this was understandably upsetting to the plaintiff. However, we do not measure the effect of the speech upon the victim; we look to the purpose of the actor in making the communication.

The son, aged 56, lived with his mother. (Mike Frisch)

The Return Of The Prodigal Son

Can you burglarize a home that you partly own?

Yes, according to an opinion issued yesterday by the South Carolina Supreme Court.

The facts:

By virtue of intestate succession, Singley inherited a 12.5 percent interest in his childhood home from his father in August 2001.  His brother owns an additional 12.5 percent, and his mother owns the remaining 75 percent.  Singley remained in the house until his early twenties, and then returned again in April 2005.  He resided there for three weeks, until his mother "put him out" of the house.  He did not return his key to his mother, telling her that he had lost it.  As between Singley and his mother, Singley did not have permission to return to the house.  It was not until one night in early October 2005, some six months later, that he did so.

On that night, Singley's mother was at a bar with friends, returning home at approximately 2:30 am.  While she was out of the house, Singley entered through a back window after climbing a small stepladder.  When she returned, Singley jumped out from behind her and put a knife to her throat.  He threatened to kill her if she screamed, and then demanded money from her.  After she complied with his requests, he forced her into her bedroom and tied her to the bed using jogging pants, medical tape, and pajamas.  He threw her telephone out the window and ordered her to wait twenty minutes before attempting to find help.  Once she was sure Singley had left and would not return, his mother freed herself from her restraints and went to a neighbor's house to call the police.  Police arrested Singley at his residence, which was around the corner from his mother's house.

Singley was indicted for first degree burglary, armed robbery, and kidnapping.  Singley moved for a directed verdict on all charges.  As to the burglary charge, Singley argued that because he is a part owner of the house and there was no order of protection or similar legal instrument divesting him of his right to enter it, the State failed to prove that he entered the house without the consent of a person in lawful possession.  In essence, he argued that because he was a person in lawful possession, he could enter freely without his mother's consent.  The circuit court denied Singley's motion.  The jury found Singley guilty of burglary and armed robbery, but it acquitted him of kidnapping.  The circuit court sentenced Singley to consecutive sentences of life without parole.  On appeal to the court of appeals, Singley challenged only his burglary conviction. State v. Singley, 383 S.C. 441, 441, 679 S.E.2d 538, 539 (Ct. App. 2009).  He repeated the arguments he made at the directed verdict stage that one cannot commit burglary by breaking into one's own dwelling. Id.  The court of appeals affirmed, holding that Singley's mother was the sole possessor of the dwelling when the burglary occurred, and therefore her consent was needed to enter.

The court concluded:

...we wish to emphasize that the inquiry into whether a defendant has a sufficient possessory interest in the dwelling burglarized is highly factual.  A defendant's ownership interest in the dwelling will not preclude a conviction of burglary as a matter of law.  Rather, the jury must determine whether, under the totality of the circumstances, the defendant used the dwelling in such a manner that it could be said to be his own home, therefore making him a person in lawful possession.

(Mike Frisch)

An Affair To Forget

The Maryland Court of Special Appeals affirmed the dismissal of a lawsuit "arising out of an affair between a Josephite priest and a church organist which allegedly occurred over fifty years ago." The plaintiffs are two children allegedly born of the affair.

The suit alleged that the Josephite Fathers and the priest had covered up the affair and concealed the identity of the children's father. The plaintiffs contend that recent DNA testing identify the Father as "probably" the father.

The suit was brought against the Father's estate, the society of Josephite Fathers, the Archbishop of Baltimore and the Archdiocese of Baltimore on a variety of theories, all of which were found legally insufficient to establish liability. (Mike Frisch)

The "Inexplicable" Ninth Circuit

The United States Supreme Court today issued a per curiam decision reversing the United States Court of Appeals for the Ninth Circuit's finding that a trial prosecutor had struck two members of the jury venire for race-based reasons.

The court found the conclusion rejecting the proferred race-neutral bases for striking two jurors "is as inexplicable as it is unexplained." Two of the three potential African-American jurors were removed by peremptory challenges. (Mike Frisch)

Calling Jackie Chiles

A Starbucks and the owner of its premises won summary dismissal of a personal injury claim by an infant plaintiff whose injuries allegedly occurred in the following circumstances:

The infant plaintiff allegedly sustained injuries when a cup of hot tea spilled on him at premises leased by the defendant Starbucks Coffee Company (hereinafter Starbucks) from the owners, Allen Brafman and Edith Brafman (hereinafter together the Brafmans). Immediately prior to the accident, the infant plaintiff's nanny allegedly was wheeling him in a stroller up a ramp with her right hand, and balancing the cup of tea on a plate with her left hand. The plaintiffs commenced this action against Starbucks and the Brafmans, alleging that the accident was caused by a dangerous and defective condition on the premises. The Brafmans moved for summary judgment dismissing the complaint and all cross claims insofar as asserted against them on the ground that they were out- of-possession landlords who owed no duty of care to the plaintiffs, and Starbucks cross-moved for summary judgment dismissing the complaint and all cross claims insofar as asserted against it. The Supreme Court denied the motion and the cross motion. We reverse.

Starbucks established its prima facie entitlement to judgment as a matter of law by demonstrating that the plaintiffs were unable to identify a dangerous or defective condition actually causing the accident. In opposition, the plaintiffs failed to raise a triable issue of fact.

Since the affidavit of the plaintiff's nanny was insufficient to raise a triable issue of fact as to whether the ramp upon which the she allegedly wheeled the stroller was negligently designed, installed, or maintained, we need not address Starbucks' contention that the Supreme Court, in denying its cross motion for summary judgment, erred in considering that affidavit because the nanny's identity was not properly disclosed by the plaintiffs in their responses to the defendants' demands for disclosure or a preliminary conference order. However, the affidavit of the plaintiffs' expert, which the plaintiffs also submitted in opposition to the cross motion, should not have been considered by the Supreme Court, since that expert witness was not identified by the plaintiffs until after the note of issue and certificate of readiness were filed, attesting to the completion of discovery, and the plaintiffs offered no valid excuse for the delay. Accordingly, the Supreme Court should have granted Starbucks' cross motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it. (citations omitted)

(Mike Frisch)

A Kidney For Your Wife

The Mississippi Court of Appeals has held that a covenant not to be compete was reasonable and enforceable, reversing the judgment of the lower court. The circumstances of the case are a bit unusual, if not unique.

The employee went to work with the company as a teenager with little prior work experience. She was a broker of meat and poultry products between buyers ans sellers throughout the nation. At the outset, she signed a covenant not to compete with the company if she departed.

She married the son of the owners of the business. He got sick and needed a kidney transplant. A close friend donated a kidney. The donor and the employee had an affair after the transplant operation. The husband learned of the affair. He took the news badly. They divorced with a degree of acrimony and she left her job with the business.

The litigation here involves her employment by a direct competitor. (Mike Frisch)