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Nov. 28 Civil Procedure: Collateral Estoppel

                Another part of res judicata is collateral estoppel, or issue preclusion. The elements of collateral estoppel are identical issues, the issue was actually litigated and decided, there was a full and fair opportunity for litigation, and the issue must have been necessary to support a valid and final judgment on the merits. In Levy v. Kosher Overseers of America illustrates the “identical issues” requirement. There, both the plaintiff and defendant used similar kosher markings. The United States Patent and Trademark Office had decided that KOA couldn’t get a trademark because it was too similar to Levy’s. KOA, however, kept using the mark and Levy sued under the Lanham Act. Levy said that KOA couldn’t argue that the marks were different because that had already been decided by the USPTO. The court held, however, that the standards for “likelihood of confusion” used by the USPTO and under the Lanham Act were different which meant that the issues would be different as well. It seems initially like the two would be the same, but something that helps is to ask which questions of law or fact have to be decided. If the standards are different, so are the questions.

                Now let’s consider a fair opportunity to litigate. In Jacobs v. CBS Broadcasting there was a dispute over if Jacobs should get credit for writing a television show. He participated in an administrative proceeding to decide if he should get credit and it was decided that he shouldn’t; so he sued. CBS tried to say the issue couldn’t be reargued because the proceeding’s judgment was sufficient for collateral estoppel purposes. The court disagreed, however. The court held that arbitration is sufficiently adjudicatory if the following factors are met: it’s conducted in a judicial-like adversary proceeding, witnesses testify under oath, involved the adjudicatory application of rules to a single set of facts, conducted before an impartial hearing officer, parties had the right to subpoena witnesses and present documentary evidence, and a verbatim record was maintained. The proceeding didn’t have these elements so there wasn’t a fair opportunity to litigate. Thus, any proceeding needs to have those criteria to be sufficient for collateral estoppel purposes.


November 28, 2006 Posted by | Civil Procedure | Leave a comment

Nov. 28 Property: Recording Statutes

                Now for the next exciting property topic: recording statutes. The nonstatutory rule is first in time, first in right. That means the first one to record gets the property. That doesn’t mean that a deed isn’t valid, just that if you record it second, you lose your right to the property. Recording statutes, however, govern how things work in America. There are three kinds of statutes: race, notice, race-notice. A race statute is just what it sounds like; you record first, you get the property just like the nonstatutory rule. On the other end of the spectrum we have notice statutes. In a jurisdiction with a notice statute, it’s immaterial who wins the race to record. A second grantee who takes without notice of a previous grant will prevail. A nice hybrid of the two is the race-notice statute. In such a jurisdiction, the second grantee has to record before the first grantee and purchase without notice of the first grantee in order to prevail over the first grantee.

                In the cases we read, the moral of the story was to check the chain of title. In Jefferson County v. Mosley Dillard conveyed a right of way (ROW) to the county, but the conveyance wasn’t recorded. The deed that Dillard conveyed to Mosley had an exception that the property was subject to public rights of way. Mosley then conveyed the property to two other people. A road had been built on only part of the ROW. The question was if Mosley was an innocent purchaser without notice. The court held that the exception in the lease was enough to lead Mosley to at least ask. If a second purchaser with notice acquired title from a first purchaser who didn’t have notice, he succeeds to all the rights of the immediate grantor. In this case, however, Mosley, the first purchaser, didn’t have the right to convey the property without the ROW.

                You can check the chain of title, but there are cases where a title search won’t reveal everything. In Sabo v. Horvath Lowery conveyed land to Horvath before he received the patent for the land from the government. After he received the patent, he conveyed the property to Sabo. The court held that the deed to Horvath was valid, but it only gave him the interest Lowery had in the land at the time. Because of this, the deed was a “wild deed” outside the chain of title. Wild deeds don’t give constructive notice, and because Sabo recorded first, Sabo gets the land. Horvath should have rerecorded right when Lowery got the patent.

                So title searches may not reveal everything, but if you do your best (usually a search back 60 years is enough) and there’s no notice, you’re okay.

November 28, 2006 Posted by | Property | Leave a comment

I’m back

Happy holidays everyone. The final memo is done, the Thanksgiving holiday was great, and now it’s time to ramp things up for finals. I’ll keep working on getting things updated that I’ve been behind on. I’d also like to thank everyone for visiting. Keep coming back.

November 27, 2006 Posted by | Uncategorized | Leave a comment

Nov. 27 Torts: Affirmative Defenses

Affirmative defenses are very helpful in torts because they are excellent defenses to negligence. We’ll first compare contributory and comparative negligence. Contributory negligence is a complete bar to recovery. In Butterfield v. Forrester, Forrester put a pole in the middle of the street and at the same time, Butterfield was riding on his horse recklessly. The court held that if a person acting with reasonable and ordinary care could have seen and avoided the obstruction, and if Butterfield was not acting so, the verdict should be for Forrest, which it was and Butterfield couldn’t recover. In McIntyre v. Ballentine, both were in an accident where McIntyre had been drinking and Ballentine was speeding. The court specifically overruled the state’s contributory negligence common law in favor of comparative negligence. It held that so long as P’s negligence is less than D’s, P may recover. P’s damages are to be reduced in proportion to the percentage of the total negligence attributable to P. In cases of multiple tortfeasors, P will be entitled to recover so long as P’s fault is less than the combined fault of all tortfeasors. There are two kinds of contributory negligence. The first is pure which means the award equals whatever percentage the defendant is at fault for. The second is modified which takes on two forms: a 50% rule and a 49% rule. In each rule, if the plaintiff’s negligence exceeds either 50% or 49% (depending on the jurisdiction you’re in), the plaintiff can’t recover.

The next affirmative defense is assumption of risk. Assumption of risk comes in two varieties: express and implied, but I’ll only deal with express assumption or risk here. A good example of express assumption of risk is Seigneur v. National Fitness Institute Inc. Seigneur went to the health club and signed a consent form that said the club wasn’t liable for any injury. She was, of course, injured and sued the club. The court held that an exculpatory clause is sufficient to insulate the party from his or her own negligence as long as its language clearly and specifically indicates the intent to release the defendant from liability for personal injury caused by the defendant’s negligence. For such a clause to be void it has to violate public policy or the defendant has to possess a decisive bargaining advantage over the customer.

November 27, 2006 Posted by | Torts | 6 Comments

Nov. 27 Property: Delivery of Deed

                We’ll begin today with delivery of deeds and delivery without escrow in particular. Here, deeds were draw up, but didn’t use an escrow agent to deliver the deed. This is problematic because then you have to ask if the grantor really intended to convey the property. For instance, in Williams v. Cole Johnnie offered Cole the deed but Cole said that Johnnie should keep it. Cole never saw the deed, and it was never recorded. The court held that if a deed is unrecorded and in the grantor’s possession, then nondelivery of the deed is presumed. The moral of the story, if you don’t want to take or give possession to the grantee, use an escrow agent. Because of a principle called “relation back” the deed is deemed to have been delivered when it was delivered to the agent.

                 Now we’ll look at two cases dealing with safety deposit boxes. The first is Kresser v. Peterson. Here, a woman with two children of her own and two step-children sidestepped her husband’s will when she executed a warranty deed naming herself and her two boys as grantees with a right of survivorship. She recorded the deed and left it in a safety deposit box to which only her and her sons had access. The court held that delivery was reflected in recording the deed and with the woman’s written authority that any of the grantees had exclusive access to the box. Contrast this result with the one in Lenhart v. Desmond. Lenhart executed a deed that was to go to his daughter, Desmond, after his death. He put the deed in a safety deposit box with some insurance policies. Lenhart was in an accident and Desmond went to get the policies. The deed disappeared, but was recorded several months later. When answering the question of if there was actual or constructive delivery, the court said that at the time of delivery, the grantor’s intent is of primary and controlling importance. In Lenhart, he didn’t want his daughter to have the deed until his death, so there was no intention to deliver before the death. In Kresser, her intention can be shown in the fact that the deed was recorded, the deed gave a right of survivorship to the sons, and the box was only in the grantees’ names.

                 Now on the topic of escrows, let’s discuss death escrows. The idea here is that in order to have an effective death escrow, the deed has to be irrevocable. In Vasquez v. Vasquez Juanita left a deed conveying the property to her brother with her attorney with instructions to deliver it after his death. In Rosengrant v. Rosengrant, Harold took the defendant to the bank, showed him the deed, the defendant handled the deed, then they left it with the bank. It was put in an envelope with Harold’s name on it. The court held that because of that, the right of retrieval was retained, and since Harold continued to use the land as if no transfer had taken place, Harold’s actions were nothing more than an attempt to employ the deed as if it were a will.

November 27, 2006 Posted by | Property | Leave a comment


I’m assuming that most people that look at this blog are law students. If so, you understand the torture that is the memo. Our final memo is due Monday so I’ll be spending most of my time working on that. I’ll post if I can, but time is of the essence. I’ll try to catch up during the Thanksgiving break, and, if not, regular posting will resume after the break.

November 15, 2006 Posted by | Uncategorized | Leave a comment

Nov. 14 Property: Requirements of Written Instruments

I’ll tell you up front that the moral of today’s lesson is USE A GOOD CONTRACT! The question of the day is what’s required of a written instrument conveying property? Let’s find out. Our first case is Bowlin v. Keifer. Guy Wade executed and delivered an instrument to Keifer saying that he conveyed all of his rights, title, and interest in his father’s estate to Keifer. The court held, however, that a contract for the sale of land will not be enforced unless the description disclosed therein is as definite and certain as that required in a deed of conveyance. Wade should have included at least some description of the property, although there’s some question in my mind as to whether the court could have just looked at his father’s will. That doesn’t seem out of the ordinary to me, but oh well.

The next case is Harris v. Strawbridge. Edward’s only heirs were his sister’s children so he made a will conveying property to them, but then a decade later he made an instrument conveying the property to Strawbridge. Even though the document didn’t use words like “grantor,” “grantee,” and “deed,” the court held that if from the whole instrument the court can ascertain a grantor and a grantee and there are operative words or words of grant showing an intention by the grantor to convey title to land which is sufficiently described to the grantee, and it is signed and acknowledged by the grantor, it is a deed. So I guess there’s some saving grace for those of us who don’t like to use lawyers or who want to do things simply. You still should have that description though. On that note, we should review the requirements of the usual Statute of Frauds. The Statute of Frauds usually requires grantor/grantee names, a description of the property, a statement of intent to convey, and a signature. Every state has a Statute of Frauds that may vary a little bit, but these requirements are pretty universal. Make sure that any instrument conveying property has these elements. More preferably at least get a title agent or someone to do. Most preferably, get a lawyer.

November 15, 2006 Posted by | Property | Leave a comment

Nov. 13 Torts: Merging of Categories

Last time we discussed the categories of people to whom the owner of property may owe a duty. In true law school fashion, we’ve been told that at least one court thinks we should forget that. In Rowland v. Christian, the California Supreme Court held that where the occupier of land is aware of a concealed condition involving, in the absence of precautions, an unreasonable risk of harm to those coming in contact with it and is aware that a person on the premises is about to come in contact with it, the trier of fact can reasonably conclude that a failure to war or to repair the condition constitutes negligence. What they did, in effect, is put the licensee and invitee in the same category. So now we have two categories: the trespasser and the invited person (my language).

November 13, 2006 Posted by | Torts | Leave a comment

Nov. 13 Property: Adverse Possession

With a general idea of adverse possession, let’s examine some of the requirements more closely. First up is exclusive possession. In ITT Rayonier, the court held that use alone doesn’t constitute possession. The ultimate test of exclusivity is the exercise of dominion over the land in a manner consistent with actions a true owner would take. 

Next up is open and notorious. In Marengo Cave v. Ross, the court held that possession is open and notorious if its nature and character is such as is calculated to apprise the world that the land is occupied and who the occupant is. A visitor has to be able to see that the owner’s rights are being violated. For possession to be notorious, it has to be so conspicuous that it is generally known and talked of by the public. The statute of limitation doesn’t begin to run until the injured party discovers or should have discovered the facts constituting the injury and cause of action.


Finally, we consider continuous possession. There can be cases where, although I’ve only owned a parcel of land for, say, five years, I can tack on the previous owner’s time (or even multiple prior owners) to my own to meet the requirement for adverse possession. In Howard v. Kunto, there was a pretty convoluted problem with deeds being different from the place where the homes were located. The court held that where several successive purchasers received record title to tract A under the mistaken belief they were acquiring tract B, and there possession of tract B is transferred and occupied in a continuous manner by successive occupants, there is sufficient privity of estate to permit tacking and establish adverse possession.


Next time we’ll talk about written instruments if we’re lucky.

November 13, 2006 Posted by | Property | Leave a comment

Nov. 11 Civil Procedure: Res Judicata

I’m going to skip going over the different rules for now. I may come back to that later. So I’m moving on to res judicata. That’s a term that means “thing adjudicated.” In the broad sense, it refers to the finality of judgments and covers claim preclusion (also known as res judicata) and issue preclusion (known as collateral estoppel). We’ll tackle claim preclusion first and collateral estoppel later. Thus, when I use the term “res judicata” for the rest of this post, I’m referring to claim preclusion. 

The doctrine of res judicata is a very important one which the Supreme Court has affirmed several times. In Federated Department Stores v. Moitie, the Court struck down a Ninth Circuit attempt to create an exception to the doctrine. The litigation path of Moitie is pretty convoluted. In essence, the government brought a suit for price fixing and seven plaintiffs filed a suit similar to the government’s. Those suits were dismissed. Two of those plaintiffs, Moitie and Brown, decided not to appeal with the other plaintiffs, but rather to file new litigation. The new suit was still very similar to the government’s complaint, but the attorney tried to couch it in terms of state law instead of federal law. When Moitie II (as it’s known now) reached the Ninth Circuit, the court acknowledged that under a strict interpretation res judicata, Moitie II’s claim would be barred. The wrinkle is that during after Moitie II was filed, the reason the for the original litigation’s dismissal was overturned and the other five plaintiffs won on appeal. The Ninth Circuit thought it would be just and in line with public policy to allow an exception to res judicata because it wouldn’t be fair for Moitie and Brown to not recover when the other plaintiffs did. The Supreme Court, however, wasn’t happy with that decision and held that the res judicata consequences of a final, unappealed judgment on the merits are not altered by the fact that the judgment may have been wrong or rested on a legal principle subsequently overruled in another case. So res judicata is a pretty strong and important doctrine that litigators need to always be aware of.

There are three elements for claim preclusion to come into effect. The first is that you need a judgment on the merits, the claim has to involve the same parties, and it has to involve the same transactions or series of transaction. The first two criteria are pretty clear, but the third isn’t. In Hermann v. Cencom Cable Assn., Judge Posner said that the Restatement definition of a transaction as a pragmatic trial unit (I’m paraphrasing here) isn’t helpful enough. The court ruled that two claims are one for the purposes of res judicata if they are based on the same or nearly the same factual allegations. This is a much more definitive rule that makes it easier to determine to what res judicata would apply and minimize mistakes by attorneys.

November 11, 2006 Posted by | Civil Procedure | Leave a comment