5th Circuit Property Law News - U.S. Fifth Circuit
U.S. Fifth Circuit - The FindLaw 5th Circuit Court of Appeals Opinion Summaries Blog

Recently in Property Law Category

Running a law practice costs money, and business expenses are often deductible from one's taxes. But if you've entered into a partnership, as many lawyers do, beware that your partnership agreement could greatly restrict your ability to deduct routine business expenses.

Attorney Peter McLauchlan learned that lesson the hard way. The Fifth Circuit recently ruled against him in a tax dispute after he deducted items that seemed routine (advertising, contract labor, wages) but were not listed as reimbursable in his partnership agreement.

The opinion provides guidance about being vigilant when drafting your partnership agreement, as well as when requesting reimbursement from your firm.

Lost Homeowners' Association Fees Are Not a Compensable Taking

The Fifth Circuit Court of Appeals decided this week in a matter of first impression that the loss of an association's right to collect assessments on condemned properties does not require just compensation under the Takings Clause of the Fifth Amendment.

According to the court, compensating for these types of assessments "would allow parties to recover from the government for condemnations that eliminate interests that do not stem from the physical substance of the land" and "unjustifiably burden the government's eminent domain power."

Holly Springs Now Known for Graceland Too, Anti-Church Ordinance

Until recently, Holly Springs, Miss.'s claim to fame was Graceland Too, Paul MacLeod's home-turned-Elvis-museum where you can view memorabilia and learn obscure Elvis facts 24/7.

Now, Holly Springs has the unusual distinction of being an anti-church city in the Bible Belt. And soon, the Fifth Circuit Court of Appeals could consider whether a city zoning ordinance that applies a more-restrictive set of requirements to churches seeking zoning approval violates the Religious Land Use and Institutionalized Persons Act (RLUIPA) and the U.S. Constitution.

Louisiana Beats Union Pacific with Eleventh Amendment Immunity

Union Pacific Railroad lost an unconstitutional taking claim against the State of Louisiana last week in the Fifth Circuit Court of Appeals. Louisiana prevailed in this railroad crossing case with the reliable state standby, Eleventh Amendment immunity.

In 2008, the Louisiana Legislature passed a law requiring that all railroad companies obtain permission from the Louisiana Public Service Commission (LPSC) before closing or removing private railroad crossings. The law mandated that railroad companies file a written request to the LPSC, and the owners of record of the private crossing, detailing the manner in which the crossing unreasonably burdens or substantially interferes with rail transportation.

Texas Redistricting Lawsuits Head to 5th Circuit, Date Set

Texas redistricting lawsuits are before the Fifth Circuit Court of Appeals, reports The New York Times.

The legislators in the State of Texas, under a Republican supermajority, redistricted this year, carving out boundaries for the Texas Legislatures, the State Board of Education and Congress.

Shortly thereafter came the lawsuits, in cities and courts across Texas, including Austin, Sherman, McAllen and San Antonio, reports The Times.

NAACP v. Kyle, Texas, No. 09-50352

Fair Housing Act Action

In NAACP v. Kyle, Texas, No. 09-50352, a Fair Housing Act action seeking to enjoin a city's changes to its zoning and subdivision ordinances governing new single-family residences, the court affirmed judgment for defendant where plaintiffs did not have standing under either an associational or organizational theory.

Capital Habeas Matter Involving Atkins Claim, and Property Issue

In Mathis v. Thaler, No. 08-70021, a capital habeas matter, the court affirmed the denial of petitioner's habeas petition where 1) petitioner's habeas litigation strategy choice to withhold an Atkins claim from the initial federal petition, while simultaneously acting so late as to preclude exploration of other relief, did not make the Atkins rule "previously unavailable" to him within the meaning of 28 U.S.C. section 2244(b)(2)(A); 2) petitioner offered no cogent argument to excuse his failure to include his Atkins claim in his first federal petition when that claim was available to him for nine months after Atkins was decided; and 3) petitioner was not entitled to equitable tolling.

In re: Northlake Dev. L.L.C., No. 09-60743

In re: Northlake Dev. L.L.C., No. 09-60743, a creditor's appeal from the district court's affirmance of the bankruptcy court's decision that certain deeds the creditor held were legal nullities, the court certified the following questions to the Supreme Court of Mississippi:  When a minority member of a Mississippi limited liability company prepares and executes, on behalf of the LLC, a deed to substantially all of the LLC's real estate, in favor of another LLC of which the same individual is the sole owner, without authority to do so under the first LLC's operating agreement, is the transfer of real property pursuant to the deed: (i) voidable, such that it is subject to the intervening rights of a subsequent bonafide purchaser for value and without notice, or (ii) void ab initio, i.e., a legal nullity?

 

Challenge to City Ordinance Regulating Natural Gas Pipelines

Texas Midstream Gulf Servs. LLC v. Grand Prairie, No. 08-11200, involved an action seeking a declaration that a city ordinance regulating natural gas pipelines was preempted by the Pipeline Safety Act (PSA), 49 U.S.C. sections 60101-60137, and that the ordinance impinged on plaintiff's state-conferred eminent domain powers.  The court of appeals partially affirmed the district court's partial grant of injunctive relief for plaintiff, holding that 1) the city's zoning power was not subservient to plaintiff's eminent domain power; 2) the PSA did not preempt the setback requirement of the ordinance; and 3) the ordinance's preempted security fence requirement was severable from the remainder of the ordinance.

As the court wrote:  "This appeal concerns municipal regulation of the siting, construction, and operation of a natural gas compressor station. We weigh jurisdictional and jurisprudential concerns before addressing the merits, which implicate federalism and the interplay between state and local authority under Texas law. We affirm the judgment of the district court denying injunctive relief in part and granting relief in part."

Related Resources

Mims v. Stewart Title Guar. Co., No. 09-10127

In defendant's appeal from the district court's order certifying a class in an action alleging violations of the Real Estate Settlement Procedure Act (RESPA), the order is reversed where the applicable Department of Housing and Urban Development liability standard required an inquiry into the reasonableness of the payments for goods and services at issue, and because that inquiry must be performed on a transaction-by-transaction basis, the plaintiffs did not meet the predominance requirement for class certification.

Read Mims v. Stewart Title Guar. Co., No. 09-10127

Appellate Information

Filed December 9, 2009

Judges

Opinion by Judge Davis