Thursday, June 26, 2008

Duke won a lawsuit because it has a bad football team

From the Sports Law Blog:

The University of Louisville sued Duke for breach of contract after the Blue Devils opted out of the final three games of a four-game football series after Louisville demolished Duke 40-3 in the first game. Apparently, Duke waved the surrender flag to avoid more embarrassments.

The case, University of Louisville v. Duke University, sought $450,000 in damages. The amount was derived from a contractual cancellation penalty of $150,000 per game if the nonbreaching party is unable to schedule a replacement game with a “team of similar stature." Louisville, of course, had a duty to mitigate its damages by trying to find a "team of similar stature." It claimed it could not.

It is in interpreting "team of similar stature" where Duke's lack of success helped. Judge Phillip J. Shepherd agreed with Duke’s argument that its team was so bad (6-45 over the past 5 years) that finding a replacement team of "similar stature" should not have been difficult. At oral argument, Duke persuasively asserted that this is a threshold that could not be any lower.

Louisville did find substitute teams and the court rejected the claim that the term "similar stature" was ambiguous. According to the court's ruling, finding a replacement of similar stature literally meant that any NCAA Division I team would suffice – including those in the Football Championship Subdivision (formerly known as Division I-AA.) Therefore, the court granted summary judgment for Duke.

Imagine, however, if Duke was a more competitive football team. Then the substitution clause would be more difficult to fulfill. Or, in a legal nightmare scenario, imagine that Duke's football team was as good as its men's basketball team! Needless to say, situation would be far more difficult.

Saturday, June 21, 2008

Property owner has to pay twice for subcontractor's work.

Under the mechanics lien act, it is the property owner's duty, before making any payments, to require the general contractor to provide a sworn written statement listing all subcontractors and amounts due or to become due to each of them. 770 ILCS 60/5(a). If a subcontractor's name is omitted from the sworn statement, or if the subcontractor claims he is owed a different amount than is listed in the statement, the subcontractor must give the owner written notice of its claim no later than 90 days after its completion of the contract. 770 ILCS 60/24(a).

When an owner is notified of a subcontractor's claim, either by way of the sworn statement or through the subcontractor's claim for lien, the owner must retain from any money due to the contractor an amount sufficient to pay the subcontractor. 770 ILCS 60/27. If, after receiving notice that a subcontractor is owed, an owner pays a contractor and does not retain sufficient funds to pay a subcontractor, such payment shall be considered illegal and made in violation of the subcontractor's rights, and the owner will have to pay twice.

That is what happened to the University of St. Francis in Joliet in the case Weather-Tite, Inc. v. University of St. Francis, et al. In that case, the general contractor on a residence hall remodeling project submitted its final bill showing it was owed approximately $450,000, $130,000 of which was owed to a subcontractor. St. Francis paid the general contractor the whole $450,000. The general contractor's bank seized the funds to partially satisfy a debt the contractor owed to the bank. The subcontractor never got paid.

Because St. Francis had notice of the subcontractor's claim by way of the general contractor's sworn statement, and because St. Francis did not set aside the subcontractor's payment, the court found that St. Francis' payment of the subcontractor's $130,000 to the general contractor violated the mechanic lien act. The court also found that the subcontractor still had a valid and enforceable mechanics lien. The subcontractor was then granted summary judgment in its attempt to foreclose upon that lien. So, St. Francis will end up paying the $130,000 subcontractor bill twice.

The case does not address the proper remedy, if any, that St. Francis has against the general contractor. Any ideas?

Thursday, June 19, 2008

BREAKING NEWS: The Big Ten Network is coming to Comcast

The two media powerhouses have finally inked a long-term agreement which will give the Big Ten Network its own channel on Comcast cable. Under the terms of the agreement, Comcast will initially launch the Network as part of its expanded basic level of service starting on August 15th, well before football season. The way I read the press release, this means that it will not be an upgrade, but rather available to all basic cable subscribers.

A tip of the hat to my dad for pointing this one out. It will be much easier for me and him to discuss basketball games next season now that I will actually be able to watch the games.

Why can't we get Wisconsin law licenses without taking their bar like Wisconsin law students do?

From the National Law Journal:

A Wisconsin federal judge has granted class status to a group of law school graduates who have earned law degrees outside that state and want the same right as Wisconsin law school graduates to practice in the state before passing a bar exam. However, shortly after granting class status, the Judge also dismissed the case on other grounds.

Christopher Wiesmueller, a graduate of Oklahoma City University School of Law who served as the original plaintiff as well as the lawyer on the case, said in an interview that he will appeal the dismissal to the 7th U.S. Circuit Court of Appeals. Wiesmueller sued on the basis that a rule allowing only graduates of Wisconsin's two law schools to practice law before passing the bar exam was a violation of the U.S. Constitution's commerce clause.

I know at least one of our Law Blog colleagues is licensed in Wisconsin. He, of course, is probably rooting against this lawsuit as it will maintain the exclusivity of his dual licensure. I, on the other hand, am rooting for this lawsuit so that I can add an asterisk to my name on the letterhead without taking another bar exam.

Full article here.

Tuesday, June 17, 2008

Defending homeowners in foreclosure cases

The headlines are full of statistics about the record number of foreclosure cases being filed in this state and around the country. Along with the increased workload for foreclosure attorneys, more and more lawyers are being asked to defend foreclosure cases on behalf of homeowners. Because this is such a specialized area of law, most lawyers have not had a lot of prior experience working a foreclosure file.

The Young Lawyers Section of the Chicago Bar Association has produced five videos outlining the foreclosure process. The videos are available free on the website I watched the first video. It is pretty informative. While these videos are marketed towards homeowners, they are a very helpful resource to the general practitioner who is looking to defend his or her first foreclosure action, especially if your case happens to be in Cook County.

Wrong date fatal to judgment lien

The first district recently released its opinion in Maniez v. Citibank, F.S.B., et al. (Citation not yet available.) The plaintiff in that case sought to foreclose on a judgment lien. Judgment was entered February 28, 1997. However, the memorandum of judgment that plaintiff recorded, and which plaintiff eventually sought to foreclose upon, said that the judgment was entered on February 27, 1997, one day sooner than it was actually entered.

The defendants moved to dismiss based on the faulty date, but their motion was denied. Defendants then appealed. The question certified for appeal was "Whether a memorandum of judgment inaccurately describing a judgment as having been entered on a specific date can serve to create a lien as provided by the relevant statute." Basically, the defendants argue that there is no judgment lien to foreclose upon because the memorandum of judgment was incorrect.

The appellate court noted that a court entered judgment did not created a lien against the real estate of the debtor at common law. A judgment lien is purely a statutory creation. That being the case, it must be strictly construed. Very strictly in this case, I might add, because the court found that a memorandum of judgment inaccurately describing the judgment does not create a lien against real estate, and the trial court's decision was reversed.

This case is prime example of the importance which needs to be given to every small detail in your case. The plaintiff made several arguments to the appellate court which did not fly, one of which was a scrivener's error argument, and the other was that judgment memos are designed purely for notice. By recording this memo, plaintiff argued, the public was notified that a judgment was entered against this particular property. Yes, the appellate court said, the public was notified that a judgment was entered (erroneously) on February 27, but the public was not notified that a judgment was (accurately) entered on February 28.

Must have been pretty difficult to explain that one to the client!

Thursday, June 12, 2008

Lawyer rating service seeks names of all licensed lawyers in Illinois

Avvo Inc., a company that provides an online ratings directory of U.S. lawyers, has petitioned the Illinois Supreme Court to obtain an electronic list of the attorneys licensed to practice in Illinois from the ARDC. The company noted that the information was already made public on the ARDC's own Web site, just not in a form that's usable by Avvo. The ARDC said providing the list would fly in the face of long-standing policy. In an April letter to Avvo, ARDC lawyers said that outside its Web site the list is only provided to state and local bar associations, officers of the court and continuing legal education organizations.

I have been to the Avvo website. They claim to have most Illinois lawyers in their database already. They just want to fill in the holes with the master list from the ARDC. I went there and found my own listing. It was very generic. I think it just basically listed the date of my admission and my contact information. I actually created a free account so that I could customize my profile. The website allows clients to go on there and "rate" the lawyers. I seriously doubt any of my clients have ever heard of that website, but I still thought it was worth it to create an account so that I could control what my clients see if they ever come across the site.

Wednesday, June 11, 2008

Discovery deposition of deceased plaintiff excluded from trial

The Illinois Trial Pracice Weblog has a great summary of a recent 5th District case which outlines the limited areas in which a discovery deposition transcript can be used as substantive evidence at trial.

To summarize briefly, the plaintiff in Berry v. American Standard, Inc. passed away before trial and before his evidence deposition was taken. He had been deposed in a discovery deposition however. The trial court barred the use of the discovery depostion at trial because "Supreme Court Rule 212(a)(5) bars that use where the deponent is a party to the action."

In affirming the trial court, the appellate court noted that none of the exceptions in Rule 212(a) applied (impeachment, admission, as an exception to the hearsay rule, for purposes for which affidavits may be used, or as former testimony if not by a party). The court also noted the purpose of the rule: "knowing in advance that a deposition is for discovery only and hence of limited availability, counsel ordinarily do not urge technical objections, and the taking of the deposition proceeds informally and expeditiously."

Please click here to read the original post from the Illinois Trial Practice Weblog.