The “When” of Chevron: The Missed Opportunity of County of Maui

SAMUEL ESTREICHER, DANIEL FOLSOM

NYU law professor Samuel Estreicher and rising 3L Daniel Folsom comment on the U.S. Supreme Court’s recent decision in County of Maui v. Hawaii Wildlife Fund, in which the Court interpreted a provision of the Clean Water. Estreicher and Folsom argue that the case presented an opportunity to clarify the murky question of when the Chevron doctrine applies, yet the Court avoided answering that question.

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The Unnecessary Protection of Qualified Immunity

JOANNA C. SCHWARTZ, SETH STOUGHTON

UCLA law professor Joanna C. Schwartz and South Carolina law professor Seth W. Stoughton address some of the arguments commonly asserted to support qualified immunity, the doctrine that shields police officers from civil liability for constitutional violations. Schwartz and Stoughton argue that eliminating qualified immunity should not affect police decision-making and that existing Supreme Court doctrine gives police officers plenty of leeway to make mistakes without violating the Constitution. Because qualified immunity applies only to unreasonable actions by police officers, eliminating or substantially restricting it should not a chilling effect on police officers’ ability or willingness to respond to critical incidents.

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CitiMortgage, Inc. v. Corte Madera Homeowners Ass'n

Court: US Court of Appeals for the Ninth Circuit

Docket: 17-16404

Opinion Date: June 19, 2020

Judge: Morgan Christen

Areas of Law: Banking, Real Estate & Property Law

Citi filed suit against Corte Madera Homeowners Association for wrongful foreclosure, breach of the statutory duty of good faith by Nev. Rev. Stat. 116.1113, and quiet title. Nev. Rev. Stat. 116.3116(1) allows HOAs to pursue liens on members' homes for unpaid assessments and charges. The district court granted summary judgment in favor of defendants. The Ninth Circuit affirmed the district court's ruling regarding the adequacy of the lender's tender, holding that BANA's offer did not constitute valid tender. The panel held that 7510 Perla Del Mar Ave Tr. v. Bank of America, N.A., 458 P.3d 348, 350-51 (Nev. 2020) (en banc) -- which held that a mere offer to pay at a later time, after the superpriority amount was determined, does not constitute a valid tender -- did not alter the validity of Citi's tender because BANA insisted on the same condition that Perla Del Mar prohibited. The panel held that the district court did not err when it concluded that Citi was obligated to satisfy the superpriority portion of the lien in order to protect its interest. Furthermore, the district court did not err by observing that Citi's offer to pay nine months' assessments was not the equivalent of an offer to pay the superpriority portion of Corte Madera's lien. Therefore, in light of Perla Del Mar, the district court did not err by ruling that Citi's tender was impermissibly conditional. The panel rejected Citi's alternative arguments. However, the panel remanded for reconsideration of the complaint's allegation that Corte Madera's foreclosure notices violated the homeowner's bankruptcy stay.

M&T Bank v. SFR Investments Pool 1, LLC

Court: US Court of Appeals for the Ninth Circuit

Docket: 18-17395

Opinion Date: June 25, 2020

Judge: Andrew David Hurwitz

Areas of Law: Banking, Real Estate & Property Law

The Ninth Circuit affirmed the district court's grant of summary judgment to Freddie Mac and M&T in a quiet title action over a foreclosed property in Nevada. At issue was whether a first deed of trust in favor of Freddie Mac, which had been placed under the conservatorship of the Federal Housing Finance Agency (FHFA), survived a non-judicial foreclosure sale of a Nevada residential property to satisfy an HOA superpriority lien. The panel held, and the parties agree, that the Housing and Economic Recovery Act (HERA) statute of limitations, 12 U.S.C. 4617(b)(12)(A), controls. The panel held that, under 12 U.S.C. 4617(b)(12), a quiet title action is a "contract" claim that is subject to a statute of limitations of at least six years; Freddie Mac and M&T Bank timely filed their quiet title action within six years of the foreclosure sale; and Freddie Mac's deed of trust, which had been placed under the conservatorship of FHFA, survived a non-judicial foreclosure sale of a Nevada residential property to satisfy a homeowners association superpriority lien. The panel also held that, although Freddie Mac and the Bank were not assignees of the FHFA, Freddie Mac was under the FHFA conservatorship, and the FHFA thus had all the rights of Freddie Mac with respect to its assets. Furthermore, although there was no contract between the purchaser and plaintiffs, the quiet title claims were entirely "dependent" upon Freddie Mac's lien on the property, an interest created by contract.

Alford v. United States

Court: US Court of Appeals for the Federal Circuit

Docket: 19-1678

Opinion Date: June 19, 2020

Judge: Timothy B. Dyk

Areas of Law: Constitutional Law, Environmental Law, Government & Administrative Law, Real Estate & Property Law, Zoning, Planning & Land Use

Water levels in Eagle Lake, near Vicksburg, are controlled by the Muddy Bayou Control Structure, part of the Army Corps of Engineers’ Mississippi River flood control program. Eagle Lake's predictable water levels allowed the plaintiffs to build piers, boathouses, and docks. In 2010, the Corps determined that “sand boils” threatened the stability of the nearby Mississippi River Mainline Levee, a component of the same flood-control program. Unusually wet weather in 2011 exacerbated the problem. The Corps declared an emergency, finding that the rise in nearby water levels threatened the structural integrity of the levee and “that the likelihood of breach was over 95%.” The Corps decided to flood Eagle Lake to reduce pressures along the levee. Because of that action, the levee did not breach. A breach would have resulted in widespread flooding affecting “about a million acres and possibly between four thousand to six thousand homes and businesses.” The damage to the plaintiffs’ properties would have exceeded the damage caused by raising the lake level. The plaintiffs sued, seeking compensation. The Federal Circuit reversed the Claims Court’s finding that the government was liable and award of $168,000 in compensatory damages. The relative benefits doctrine bars liability. The plaintiffs were better off as a result of the Corps’ actions. If the government had not raised the water level, the levee would almost certainly have breached, and the plaintiffs would have suffered more damage.

Honchariw v. County of Stanislaus

Court: California Courts of Appeal

Docket: F077815(Fifth Appellate District)

Opinion Date: June 25, 2020

Judge: Donald R. Franson, Jr.

Areas of Law: Government & Administrative Law, Real Estate & Property Law

Plaintiff appealed from a judgment denying his petition for writ of mandate, contending that the trial court misinterpreted the conditions placed on the approved vesting tentative map for a small subdivision he is attempting to develop. The trial court interpreted the conditions to require a fire suppression system, with functional fire hydrants to be in place, before the county would approve the final subdivision map. In the published portion of the opinion, the Court of Appeal held that plaintiff's claims of misinterpretation are not barred by the 90-day period set forth in Government Code section 66499.37. The court held that a claim of misinterpretation is distinct from a claim challenging the validity of the condition of approval and the two types of claims accrue at different times.

McKenna v. Association of Apartment Owners of Elima Lani

Court: Supreme Court of Hawaii

Docket: SCWC-16-0000284

Opinion Date: June 25, 2020

Judge: Paula A. Nakayama

Areas of Law: Contracts, Real Estate & Property Law

In this case arising from settlement negotiations between Plaintiff and Defendants relating to a dispute about water and mold damage to Plaintiff's condominium the Supreme Court remanded this case with instruction that the circuit court hold an evidentiary hearing to address issues of fact as to the terms and existence of a purported settlement agreement between the parties. At the close of a settlement conference, the circuit court and the parties acknowledged that the parties had reached a settlement. Plaintiff, however, refused to sign the settlement documents and proceeded to represent herself pro se. Defendants filed a motion to enforce the settlement agreement. The circuit court granted the motion, concluding that the parties had entered into a binding settlement agreement but that the proposed written settlement agreement contained terms beyond those agreed to at the settlement conference. Therefore, the court struck those terms and created a revised settlement agreement. The Supreme Court remanded the case, holding that because genuine issues of material fact existed as to whether the parties reached a valid settlement agreement and as to which terms the parties agreed to at the settlement conference, the circuit court should have granted Plaintiff's motion for an evidentiary hearing to resolve those issues.

Sakal v. Association of Apartment Owners of Hawaiian Monarch

Court: Supreme Court of Hawaii

Docket: SCWC-15-0000529

Opinion Date: June 18, 2020

Judge: Richard W. Pollack

Areas of Law: Real Estate & Property Law

In this case arising from the nonjudicial foreclosure of Petitioner's apartment based on unpaid assessments the Supreme Court reversed the decision of the intermediate court of appeals (ICA) partially affirming the trial court's dismissal of the Petitioner's claims against the apartment owners' association and the purchaser of the property for wrongful foreclosure, holding that the complaint stated a claim against both defendants. Petitioner's claim for wrongful foreclosure was based on the association's lack of a valid power of sale. The district court found that the complaint failed to state a claim upon which relief could be granted because Haw. Rev. Stat. Chapter 667, which governs foreclosures, contained a statutory bar that precluded Petitioner's claims. The ICA concluded that the statutory bar did not preclude Petitioner's claim for damages against the association but did not preclude Petitioner's claim to title of the property against the purchaser. The Supreme Court reversed, holding (1) Petitioner's wrongful foreclosure claim was not limited by chapter 667, and chapter 667's provisions do not bar a claim of wrongful foreclosure based on the lack of a power of sale; and (2) therefore, the complaint did state a claim against both the association and the purchaser of the apartment.

Christensen v. Iowa Department of Revenue

Court: Iowa Supreme Court

Docket: 19-0261

Opinion Date: June 19, 2020

Judge: Oxley

Areas of Law: Real Estate & Property Law, Tax Law

The Supreme Court affirmed the judgment of the district court affirming the determination of the Iowa Department of Revenue that capital gains Taxpayer earned from the sale of farmland she inherited from her father and leased on a cash-rent basis did not qualify for the exclusion from Iowa income tax allowed under Iowa Code 422.7(21)(a), holding that the assessment of additional taxes and related penalties and interest was not irrational, illogical, or wholly unjustifiable. At issue was whether the Department's interpretation of section 422.7(21)(a), as delineated in Iowa Administrative Code rule 701-40.38(1)(c), or the director's application of that rule to the facts was irrational, illogical, or wholly unjustified. The Supreme Court affirmed, holding (1) the Department acted within its discretion when it promulgated distinct rules for farm leases and other types of real property leases in rule 701-40.38(1)(c); and (2) Taxpayers' attempt to avoid the farm-specific rules is rejected.

Arnold v. Walz

Court: Nebraska Supreme Court

Citation: 306 Neb. 179

Opinion Date: June 19, 2020

Judge: Lindsey Miller-Lerman

Areas of Law: Real Estate & Property Law, Trusts & Estates

In this quiet title action, The Supreme Court affirmed the judgment of the district court granting summary judgment in favor of Joy Arnold and quieting title in favor of the Estate of Beverly Freiden, holding that Michael Walz, a tenant of Beverly's real property, did not exercise an option to purchase the property associated with the lease, and the real property remained in the Estate. Walz leased real property from Beverly under a lease that included an option to purchase the property at any time before the end date of the lease. Beverly died during Walz' tenancy. After the term of Walz' initial option ended, Walz and Jon Freiden executed several lease modifications that purportedly extended Walz' option to buy the real property. When Walz claimed he owned the property, Arnold, the personal representative of the Estate, petitioned the district court to quiet title to the property in the Estate. The district court granted summary judgment for Arnold. The Supreme Court affirmed, holding that there was no genuine issue of material fact with respect to the fact that the real property remained in the Estate, and therefore, the district court did not err when it quieted title in the Estate.

City of Wahoo v. NIFCO Mechanical Systems, Inc.

Court: Nebraska Supreme Court

Citation: 306 Neb. 203

Opinion Date: June 19, 2020

Judge: Papik

Areas of Law: Real Estate & Property Law

In this negligence action, the Supreme Court reversed the district court's judgment for NIFCO Mechanical Systems, Inc., holding that the comparative negligence instructions constituted plain error. After a pipe in the sprinkler system of the City of Wahoo's public library burst, Wahoo brought suit against Cheever Construction Company and NIFCO alleging that Cheever negligently installed the sprinkler system and that NIFCO negligently failed to inspect and maintain it. NIFCO asserted as an affirmative defense that Wahoo's negligence was a proximate cause of any damages. The claims against Cheever were dismissed by stipulation during the course of trial, and the case was submitted to the jury with NIFCO as the sole defendant. The jury rendered a verdict in favor of NIFCO. The Supreme Court reversed, holding that the district court's comparative negligence jury instructions were plainly erroneous.

State ex rel. Xenia v. Greene County Board of Commissioners

Court: Supreme Court of Ohio

Citation: 2020-Ohio-3423

Opinion Date: June 25, 2020

Judge: Per Curiam

Areas of Law: Government & Administrative Law, Real Estate & Property Law

The Supreme Court affirmed the judgment of the court of appeals granting the city of Xenia's request for a writ of mandamus ordering the Greene County Board of Commissioners (the county) to approve the city's annexation petition, holding that the city's petition satisfied the conditions of Ohio Rev. Code 709.23(E). The proposed annexation in this case concerned approximately forty-five acres of land located between Central State University and Xenia. The county denied the petition, determining that the petition did not satisfy section 709.023(E)(1), (4), (5), or (7). Thereafter, the city filed an original action in the court of appeals requesting a writ of mandamus compelling the county to approve the petition. The court of appeals issued the writ. The Supreme Court affirmed, holding (1) a writ of mandamus is a proper vehicle to compel the county to grant the petition; and (2) the city's petition satisfied the conditions specified in section 709.023(E).

Chicago Title Insurance Co. v. Cochran Investments, Inc.

Court: Supreme Court of Texas

Docket: 18-0676

Opinion Date: June 19, 2020

Judge: Debra Lehrmann

Areas of Law: Contracts, Real Estate & Property Law

In this real estate dispute, the Supreme Court held that where the plain language of a special warranty deed limited the grantor's liability for failures of title to claims asserted by individuals "by, through and under" the grantor, the grantor could not be liable for breach of the covenant of seisin because the plaintiff asserted no such claim. The grantor of property, who purchased the property at a foreclosure sale, and the grantee entered into a residential sales contract, and the grantor conveyed the property by special warranty deed to the grantee. The grantee obtained title insurance from an insurer. When the validity of the foreclosure sale was challenged, the insurer assumed the grantee's defense and settled the suit. As the grantee's subrogee, the insurer sued the grantor for breach of the sales contract and breach of the implied covenant of seisin. The trial court found in favor of the insurer. The court of appeals reversed. The Supreme Court held (1) the special warranty deed barred the insurer's recovery because, regardless of whether it implied the covenant of seisin, the deed limited the grantor's liability for failures of title to claims asserted by individuals "by, through and under" the grantor; (2) because the failure of title did not arise from such a claim, the grantor was not liable for it; and (3) the merger doctrine barred the insurer's breach of contract claim.

Marchbanks v. Liberty Insurance Corp.

Court: Supreme Court of Texas

Docket: 18-0977

Opinion Date: June 19, 2020

Judge: Per Curiam

Areas of Law: Contracts, Insurance Law, Real Estate & Property Law

The Supreme Court reversed the judgment of the court of appeals concluding that an insurer's payment of an appraisal award barred an insured's claims under the Texas Prompt Payment of Claims Act (TPPCA), Tex. Ins. Code chapter 542, holding that payment of an appraisal award does not extinguish TPPCA liability as a matter of law. After Insured's property sustained hail and wind damage, Insurer valued the property damage at $387. Believing the damage was undervalued, Insured sued, alleging breach of contract and extra-contractual claims. Insurer successfully moved the trial court to compel appraisal, and the appraisal award exceeded Insurer's prior estimates. Insurer paid the award and then filed a motion for summary judgment. The trial court granted the motion and rendered a take-nothing judgment. The court of appeals affirmed, concluding that, as a matter of law, Insured could not maintain his TPPCA claim because Insurer paid the appraisal award. The Supreme Court reversed, holding that the court of appeals' opinion was inconsistent with this Court's recent decisions on the issue.

Perry v. United Services Automobile Ass'n

Court: Supreme Court of Texas

Docket: 19-0210

Opinion Date: June 19, 2020

Judge: Per Curiam

Areas of Law: Contracts, Insurance Law, Real Estate & Property Law

The Supreme Court reversed the judgment of the court of appeals concluding that an insurer's payment of an appraisal award barred an insured's claims under the Texas Prompt Payment of Claims Act (TPPCA), Tex. Ins. Code chapter 542, holding that payment of an appraisal award does not extinguish TPPCA liability as a matter of law. After Insured's property sustained damage from a storm, Insurer valued the property damage at $5,153. Believing the property damage was undervalued, Insured sued, alleging breach of contract and extra-contractual claims and invoking the policy's appraisal clause. Appraisers valued the damage at almost $15,000. Insurer paid the balance of the award and then filed a motion for summary judgment. The trial court granted the motion. The court of appeals affirmed, concluding that, as a matter of law, Insured could not maintain his TPPCA claim because Insurer paid the appraisal award. The Supreme Court reversed and remanded the case, holding that the court of appeals' opinion was inconsistent with this Court's recent decisions on the issue.