Recently in Property Law Category

In plaintiff's breach of contract action against defendants involving a town's exercise of its statutory right of first refusal (ROFR) to purchase plaintiff's forest land and subsequent assignment of its right to a nonprofit conservation organization, summary judgment for defendants is affirmed where: 1) the liquidated damages provision applies to defendants, as the holder of an ROFR must meet all of the terms and conditions of the offer, including subsidiary terms such as the liquidated damages clause at issue; 2) the liquidated damages provision is enforceable; 3) district court's summary judgment with respect to a Chapter 93A claim, the business-to-business provisions of the consumer protection statute, was properly granted to defendants as Chapter 93A is not applicable where a nonprofit defendant is acting in furtherance of its core mission; 4) plaintiff's challenge to the district court's conclusion that she did not plead a violation of the covenant of good faith and fair dealing in her complaint is rejected; and 5) plaintiff's remaining claims are rejected as meritless.   

Read Kunelius v. Town of Stow, No. 08-2393

Appellate Information

Appeal from the United States District Court for the District of Massachusetts

Decided November 9, 2009

Judges

Before:  Torruella, Howard, and Lipez, Circuit Judges

Opinion by Howard, Circuit Judge

Counsel

For Appellant:  Michael C. McLaughlin

For Appellee:  Richard A. Oetheimer,  Dahlia S. Fetouh and Goodwin Procter LLP

In plaintiff-wireless carrier's case against a city, the city's zoning board, and some of its members for denying a variance and special use permit to build a wireless communications tower in the city, district court's judgment in favor of the plaintiff is affirmed as the zoning board's decision was a final action for purposes of section 332(c)(7)(B) of the Telecommunications Act, and as such, the court did not err in finding that the zoning board's decision had the effect of prohibiting the provision of personal wireless services.   

Read Omnipoint Holdings, Inc. v. City of Cranston, No. 08-2491

Appellate Information

Appeal from the United States District Court for the District of Rhode Island

Decided November 3, 2009

Judges

Before:  Lynch, Chief Judge, and Gajarsa and Lipez, Circuit Judges

Opinion by Lynch, Chief Judge

Counsel

For Appellant:  Jeffrey S. Michaelson, Michaelson & Michaelson

For Appellee:   William A. Worth, Thomas M. Elcock and Prince, Lobel, Glovsky & Tye LLP

In an Indian tribe's challenge to the decision approved by the Bureau of Indian Affairs (BIA) to lease a plot of Passamaquoddy land for the construction and operation of a liquefied natural gas facility, claiming that the BIA approved the lease in violation of the National Historic Preservation Act and the Administrative Procedure Act, the district court's judgment dismissing the case is affirmed as the plaintiff did not present its argument in its first appeal and its request for relief from the mandate that exhaustion was mandatory unless an exception applied requires a showing of both blatant error and the threat of serious injustice if the court adheres to the mandate.   

Read Nkihtaqmikon v. Impson, No. 08-2122

Appellate Information

Appeal from the United States District Court for the District of Maine

Decided October 28, 2009

Judges

Before:  Torruella, Ripple, and Boudin, Circuit Judges

Opinion by: Boudin, Circuit Judge

Counsel

For Appellant:  Teresa B. Clemmer, Environmental and Natural Resources Law Clinic, Vermont Law School, with David K. Mears.

For Appellee: John L. Smeltzer, Department of Justice, Environment & Natural Resources Division, with John C. Cruden, Acting Assistant Attorney General, Sara E. Costello, M. Alice Thurston, Department of Justice, Environment & Natural Resources Division, and John Harrington, Assistant Regional Solicitor, Department of the Interior, Office of the Solicitor

In plaintiff-mortgage lender's lawsuit against the Federal Home Loan Mortgage Corp. (Freddie Mac), district court did not abuse its discretion in denying bank's untimely motion to intervene post-settlement between the parties. 

Read R&G Mortgage Corp. v. Fed. Home Loan Mortgage Corp., No. 08-2542

Appellate Information

Appeal from the United States District Court for the District of Puerto Rico

Decided October 1, 2009

Judges

Before:  Howard, Ripple, and Seyla, Circuit Judges 

Opinion by Seyla, Circuit Judge

Counsel

For Intervenor:  Nelson N. Cordova-Morales, Harold D. Vicente and Vicente & Cuebas.

For Plaintiff:  Raul M. Arias, John Oberdorfer, Samantha R. Petrich, Patton Boggs LLP, Francisco G. Bruno, Irma M. Léon González, and McConnell Valdes. 

For Defendant:  William C. Ballaine, Mark S. Landman, Landman Corsi Ballaine & Ford, Ricardo F. Casellas, Casellas Alcover & Burgos, P.S.C., and Kenton W. Hambrick.

In condemnation proceedings involving a 34 acre parcel used by the Federal Aviation Administration for aircraft navigation, the district court's judgment is affirmed where the district court: 1) did not abuse its discretion in excluding defendant's own testimony when the court had excluded similar testimony by defendant's expert; 2) did not err in holding that the "before and after" method was appropriate in valuing the property, assuming a partial taking; and 3) did not err in submitting to the jury unity of use. Defendant's remaining contentions were without merit.       

Read US v. Piza-Blondet, No. 08-2263 

Appellate Information

Appeal from the United States District Court for the District of Puerto Rico

Decided September 11, 2009

Judges

Before:  Boudin, Seyla, and Dyk, Circuit Judges.   
Opinion: Dyk, Circuit Judge 

Counsel

For Appellant:  Paul E. Harrison, Francisco Diez and J. Wayne Mumphrey.

For Appellee:  Aaron P. Avila, Attorney, U.S. Dep't of Justice, John C. Cruden, Acting Assistant Attorney General and Jeffrey M. Tapick, Attorney, U.S. Dep't of Justice.

In a dispute between two sureties claiming rights to the same property, plaintiff's appeal requesting review of a district court order summarily dissolving a pretrial attachment is dismissed for lack of jurisdiction under the collateral order doctrine, where the circuit court was unable to discern the basis for the district court's ruling with respect to the unexplained interlocutory order.     

Read US Fidelity & Guar. Co. v. Arch Ins. Co. , No. 08-1709

Appellate Information

Appeal from the United State District Court for the District of Massachusetts
Decided August 25, 2009

Judges

Before Boudin and Lipez, Circuit Judges, and Signal, of the District of Maine, sitting by designation.  
Opinion by Lipez, Circuit Judge.

Counsel

For Appellant:  Bradford R. Carver, with whom Marissa I. Delinks, Bernard D. Posner, and Hinshaw & Culbertson LLP were on brief, for appellant.

For Appellee:  Todd R. Regan, with whom Dennis C. Cavanaugh, Gordon G. Patterson, and Robinson & Cole LLP were on brief, for appellee.

In an action challenging amendments to Puerto Rico's Compulsory Motor Vehicle Liability Insurance Act, district court judgment is affirmed in part, reversed in part and remanded where: 1) the court erred in dismissing plaintiff's takings clause claim, as their takings claim for declaratory and injunctive relief is ripe despite the failure to utilize Procedure No. 96 to pursue their administrative remedy; 2) although plaintiffs have a sufficient property interest in the duplicate premiums for purposes of due process, further proceedings are necessary to determine whether the transfers to the Secretary of Treasury constitutes a sufficient deprivation of that property interest to require notice under the Due Process Clause; 3) the court properly dismissed plaintiff's equal protection claim as neither law is directed to a protected class, and the Commonwealth's action is rational and serves the legitimate end of balancing the budget; 4) the court properly granted qualified immunity to defendants; and 5) the court erred in denying class certification as plaintiffs satisfied all the requirements necessary to certify a class. 

Read Garcia-Rubiera v. Calderon, No. 07-2409

Appellate Information
Appeal from the United States District Court for the District of Puerto Rico.
Filed on JUNE 30, 2009

Judges
Before Torruella, Howard, Circuit Judges, and DiClerico, District Judge.
Opinion by Torruella, Circuit Judge.

Counsel
For Appellant: Antonio J. Amadeo-Murga.
For Appellee: Irene S. Soroeta-Kodesh, Assistant Solicitor General.