legalgist.com

What are some potential issues with LLCs?

Fri, 02 Mar 2012 15:15:48 +0000

Creditors will argue that they can pierce the veil of an LLC.
Some statutes hold the rule to piercing LLC’s to be the precedent cases in piercing the corporate veil
Fiduciary duties: §409: picks up §404 of RUPA, stating a fiduciary duty can be modified but not eliminated
in a manager-managed LLC, a member owes no fiduciary duty for the ordinary commercial venture one will probably question whether to use a corp. or an LLC

What is a Motion in Limine?

Fri, 24 Feb 2012 17:25:23 +0000

You must raise the issue before trial that you know is going to be in dispute. These are motions to bring in or keep out evidence. Gives judge a preview of the case. Always include a brief with a motion in limine.

What is priority of title?

Fri, 17 Feb 2012 15:10:01 +0000

When a dispute arises about who has good title, each state adopts rules about how you determine whose interest is superior
1. The base line in determining priority of title is the Common Law position of “first in time, first in right”
2. If a modern statute does not apply to a deed, according to the definition in the statute, then follow the base line from the Common Law

What happened in Beeck v. Aquaslide?

Thu, 16 Feb 2012 16:30:26 +0000

The statute of limitations had run out before the Plaintiff found out that he was suing the wrong company. The plaintiff had done 3 on-site investigations and had ordered a slide from the original defendant so they had no reason to think otherwise. Defendant wants to amend to answer to say it wasn’t them (deny claim) so it has to be an amendment by permission because the 20 days had expired. After the amendment was granted by the court (no undue delay or bad faith so they gave it to them), the defendant moved for separate trials. Court granted that and in the first trial (on the issue of whether Aquaslide was the mfgr. or not), they found that Aquaslide was not the mfg. so Beeck lost the right to sue anyone on their claim because the SOL had run.

What is respondeat superior liability?

Sat, 11 Feb 2012 15:26:40 +0000

In some cases, the defendant is liable for harm to the plaintiff – even though the defendant’s negligent or illegal conduct was not the but for cause of the harm. A telephone company is held liable for the negligent actions of its employee who knocks down a telephone poll. The same is also so for partners in crime joint conspirators. In such cases the amount of liability depends on whether the state follows joint and several liability or proportionate share of liability

Case on point: Landers v. East Texas Salt Water Disposal Co.

What is a top Illinois case involving confidential informants?

Thu, 09 Feb 2012 03:20:32 +0000

McCray v. Ill.: This case stands for the proposition that nothing in the due process clause of the 14th Amendment requires a state judge in every probable cause or evidence suppression hearing to assume arresting officers are committing perjury and therefore require disclosure of the informant’s identity.

However in situations where there is distinct and real doubt, the court may order disclosure to the defense of who the informant was. However, this is discouraged.

What happened in Kelly v. Marx

Wed, 20 Jul 2011 22:05:31 +0000

Ps seek to recover earnest money for purchase of Ds property (entered agreement to buy house, then were unable to sell current home and backed out of deal – Ds accepted offer of other prospective buyers, selling for more than price agreed to with P) – SC granted motion for summary judgment of Ds concluding they were entitled to deposit because the liquidated damages clause (determines in advance damages in case of default) in their agreement was enforceable
• AC reversed under “second-look” doctrine: examined circumstances at contract formation AND actual damages suffered by each party – concluded Ds not entitled to keep deposit because they suffered no actual damages and therefore
liquidated damages would serve as a penalty and not as compensation for a loss
Court’s analysis:
• Reject the second look approach and conclude that a liquidated damages clause in a purchase and sale agreement will be enforced where, at time agreement was made, potential damages were difficult to determine and the clause was a
reasonable forecast of damages expected to occur in the event of a breach
•   Judge should examine only the circumstances at contract formation – liquidated damages should not be enforced only if sum is grossly disproportionate to an estimate of actual damages made at contract formation
•   Should enforce contracts according to their plain meaning
•   Therefore, Ps not entitled to the return of the deposit and liquidated damages were a reasonable estimate of the damage to the Ds – seller retains liquidated damages

What are the 3 types of Common Law Concurrent Interests?

Tue, 19 Jul 2011 17:01:50 +0000

Tenants in Common
1. Characteristics
  1. Separate but undivided interest in the property
  2. Conveyable by deed or will
  3. No survivorship rights between tenants in common
  4. Each tenant in common owns an undivided share of the whole
  5. Default position under Modern Law – in cases of ambiguous transfers it was the presumption
2. Creation
  1. Creation by will or deed
Joint Tenants
1. Characteristics
  1. Regarded as a single owner
  2. Each tenant is seised by the share and by the whole
    1. Livery of seisin replaced by the deed
  3. Nothing really passes when a joint tenant dies, because the other joint tenant was seised of the whole even while the other joint tenant lived
  4. Requires the 4 unities (without these it is a tenancy in common):
    1. Time – interest must exist at the same time (beginning and end), any deviation makes a tenancy in common
    2. Title – interest must arise from same transaction, intestate succession can’t create joint tenancy
    3. Interest – all joint tenants have equal undivided shares and interests
    4. Possession – each joint tenant must have a right to possession of the whole, granting of exclusive possession doesn’t destroy the joint tenancy
  5. Default position under Common Law – in cases of ambiguous transfers to more than one person it was the presumption
2. Creation
  1. Magic Words – “joint tenants with the right of survivorship”
Tenants by the Entireties
1. Characteristics
  1. Only husbands and wives
  2. 4 unities plus 5^th unity of marriage
  3. H + W hold as one person, not equal share like Joint Tenancy
  4. Divorce terminates the 5^th unity and the tenancy by the entirety
  5. Only half the states recognize this today
  6. Default position for ambiguous transfer to H+W under Common Law

What happened in Gay Jenson Farms Co. v. Cargill, Inc.?

Mon, 18 Jul 2011 16:10:07 +0000

Cargill loaned money to elevator operator Warren Grain and Seed Co., which operated a grain elevator. Cargill
subsequently took more and more control and loaned more money to Warren as its financial condition deteriorated.
Eventually, Warren went bankrupt, causing many farmers to lose money owed them by Warren. The farmers sued
Cargill, claiming Warren was its agent. Farmers won case because Restatement (Second) of Agency § 14 O (1958)
says that a security holder who takes over the management of the debtor’s business either in person or through an
agent, and directs what contracts may or may not be made, becomes a principal, liable as a principal for the obligations
incurred thereafter in the normal course of business by the debtor who has now become his principal agent. Cargill
exercised too much control over the business to deny the relationship was more than a normal debtor-creditor situation.

What is an Easement by Necessity?

Wed, 13 Jul 2011 12:21:22 +0000

Easements of necessity: Two parcels may be so situated that an easement over one is “strictly necessary” to the enjoyment of the other. If so, courts are willing to find an “easement of necessity. Unlike an easement by implication, the easement of necessity does not require that there have been an actual prior use before severance. Conversely however, the necessity must be “strict” rather than “reasonable.”

The most common example of an easement of necessity is where a parcel of land is “landlocked” and access to a public road can only be gained via a right of way over an adjoining property.

There are three separate elements the law has established:

1. prior common ownership of the dominant and servient estates
2. transfer of one of the estates by the common grantor, creating the lack of access, and
3. necessity of the easement for making use of the transferred estate

A right to a way of necessity can lie dormant and be activated by a remote
grantee