Sunday, June 28, 2009

The Drainage Code.

I handled a drainage case a couple of years ago. My client's basement flooded after the neighboring farm was developed by a local home builder. We alleged that the defendant had, by artificial means, changed the natural drainage of its real estate in such a manner that water flowed onto my client's property in a quantity greater than that which had flowed naturally.

That case settled relatively quickly, so I did not have a chance to become a true drainage law expert, but a recent drainage law case from the Illinois Supreme Court caught my eye. In that case, the Christensen family started subdividing its 100 acre farm in 1994. Plaintiffs bought 65 acres. Defendants bought 19 acres directly south of plaintiffs' land. Water from plaintiffs' property drained in a south-easterly direction, right onto defendants' property.

Long before they sold it, the Christensens had installed clay drainage tile on their property. When plaintiffs' purchased their portion of the property, the tile needed extensive repairs and plaintiffs wanted to replace the clay tile with corrugated plastic tile. Because it was a unified system of tile across both plaintiffs' and defendants' land, plaintiffs needed access onto defendants property to extend the new plastic tile. Defendants would not allow plaintiffs onto their property to make the necessary repairs and improvements, so plaintiffs filed suit.

Plaintiffs sought a declaratory judgment that the natural flow of water from plaintiffs’ property is over and through the property owned by the defendants and that pursuant to the Illinois Drainage Code plaintiffs should be allowed access to defendants' property to make the necessary repairs.

The Court found that if plaintiffs originally paid for construction of the tile system, or if they are successors in title to the persons who did, they have a statutory duty to keep the drainage tile in good repair. If the tile system was originally constructed by mutual license, consent or agreement of the adjacent landowners, plaintiffs then have the right to enter “upon the lands upon which the drain *** is situated and repair the drain.”

So, plaintiffs could access the defendants' property, but the defendants expressed concern that the tile work contemplated by plaintiffs would damage their fields and the existing tile. Not to worry, said the Court. In a repair case involving the land of another, the plaintiff is liable, by statute, for the actual damages caused by the repair work. 70 ILCS 605/2–6 (West 2004). Those actual damages can be resolved in proceedings conducted after the work is completed.

Thursday, June 25, 2009

Media Bias.

I tried my first case in front of the media yesterday. A reporter from the Naperville Sun was in the courtroom for the nearly three-hour trial, although I did not know that at the time.

Anyway, we won the case, but the article glorifies the defendants' unfounded complaints. I could not believe the testimony coming from the defendants. The judge specifically found that the defendants' testimony was not credible. We prevailed on every issue. Then this article comes out portraying my client as the bad guy. This particular paper has been after my client for a long time.

A prime example of biased reporting here.

Wednesday, June 24, 2009

Online law student passes the bar exam

An online law school graduate who sued the Supreme Judicial Court of Massachusetts for the opportunity to take that state's bar examination is now a newly minted Massachusetts lawyer.

Ross E. Mitchell is the first Massachusetts lawyer with an exclusively online legal education. Last November, Mitchell won his case against the state's Board of Bar Examiners, which denied his bid to bypass a requirement that U.S.-trained applicants be graduates of an American Bar Association-accredited law school.

The court allowed Mitchell to sit for the bar because the ABA is mulling changes to its accreditation standards. Last September, the ABA launched a comprehensive review of its standards for the approval of law schools. Currently, ABA-approved schools can only allow graduates to take up to 12 credit hours of classes online.

Mitchell, who was a pro se litigant in his Supreme Judicial Court case, graduated from Concord Law School. Mitchell has also passed the California general bar examination and the Multistate Professional Responsibility Examination, and he was admitted to practice before the U.S. Court of Appeals for the 1st Circuit.

Thursday, June 18, 2009

Indiana Mechanics Lien Update

Like in Illinois, people performing work on buildings in Indiana can place a mechanics lien on the property on which the work was performed. Pursuant to that State's mechanics lien act, lienable work includes the erection, alteration, repair, or removal of a building, among other things.

The Indiana Court of Appeals recently considered what qualifies as a "repair" under the statute. The case Midwest Biohazard Services, LLC v. Rodgers, 893 N.E.2d 1074 (Ind. Ct. App. 2008), concerned the clean-up and removal of a decomposing body.

Apparently Mr. Rodgers, Sr. died in his home. His body was not discovered for several days. During that time, his body decomposed causing fluids to leak into the carpet, subfloor, and down into the basement. Mr. Rodgers, Jr. contracted with Midwest Biohazard Services ("Midwest") for the clean-up and removal of his father's decomposed body. After the work was complete, Mr. Rodgers, Jr. informed Midwest that he would not be paying them.

Midwest quickly recorded a mechanics lien and filed suit to foreclose. The trial court dismissed, finding that the services did not constitute a repair under the statute. On appeal, Midwest argued that it performed repairs, but Mr. Rodgers, Jr. argued that they performed only cleaning services.

The Appellate Court looked to the purpose of the act and to the definition of the work repair. Because that word is not defined in the act, it is given its plain and ordinary meaning, which includes restoring something to its original value. The Court noted that a home free of biohazard contaminants was worth much more than a home that was full of biohazard contaminants, so the house had been repaired by Midwest and they were entitled to their lien.

Tuesday, June 16, 2009

Common Knowledge

I recently signed up for West's Headnote of the Day. They send you a random headnote from a random case via email everyday. Here is today's:

157 Evidence

157I Judicial Notice

157k14 k. Facts Relating to Human Life, Health, Habits, and Acts.

It is a matter of common knowledge that the United States is not a wine-drinking country, such as are some of the European countries.

In re Riverbank Canning Co., 95 F.2d 327 (1938)

Tuesday, June 9, 2009

True of False?

This story was posted to the ISBA email exchange. There was some debate back and forth as to whether this was actually a true story. The original poster claimed that this was a true story that took place in Charlotte, North Carolina. True or not, it is a good story that is worth reposting here. Here it is:

A lawyer purchased a box of very rare and expensive cigars, then insured them against fire, among other things.

Within a month, having smoked his entire stockpile of these great cigars, the lawyer filed a claim against the insurance company. In his claim, the lawyer stated the cigars were lost 'in a series of small fires.'

The insurance company refused to pay, citing the obvious reason, that the man had consumed the cigars in the normal fashion!

The lawyer sued and WON!

While delivering the ruling, the judge agreed with the insurance company that the claim was frivolous. The judge stated nevertheless, that the lawyer held a policy from the company, in which it had warranted that the cigars were insurable and also guaranteed that it would insure them against fire, without defining what is considered to be unacceptable 'fire' and was obligated to pay the claim.

Rather than endure lengthy and costly appeal process, the insurance company accepted the ruling and paid $15,000 to the lawyer for his loss of the cigars that perished in the 'fires'.


After the lawyer cashed the check, the insurance company had him arrested on 24 counts of ARSON!!!

With his own insurance claim and testimony from the previous case being used against him, the lawyer was convicted of intentionally burning his insured property and was sentenced to 24 months in jail and a $24,000 fine.

What do you think? True or not?

Friday, June 5, 2009

Non-Wage Garnishments

In April I wrote about a successful adversary case in which I obtained a non-dischargeable judgment on behalf of my client for approximately $130,000.00. Here is the original article. One commenter noted that the case had been handled perfectly up to that point, but the commenter wondered how I expected to collect that kind of money from someone who had just filed bankruptcy.

This particular defendant runs a small business as a sole proprietorship. After several weeks of fruitless negotiations regarding a monthly payment plan, I issued a non-wage garnishment to the bank at which the defendant keeps his "business" accounts. The bank froze nearly $14,000.00. Now I had this guy's attention. We eventually worked out an agreement to accept $10,000.00, release $4,000.00, and the defendant would pay $2,000.00 per month towards his remaining balance beginning July 1st.

Then, a couple of days later, I received a call from the bank. They wanted to "amend" their answer down to about $1,800.00. They apparently paid out on a $12,000.00 check after receiving my garnishment summons. I told them that I could not accept an "amended" answer. I had already filed my motion for turnover of the $14,000.00.

Hearing on that motion is scheduled for next Wednesday. While preparing for that hearing, I dusted off the old Code of Civil Procedure. The garnishment statute begins at 735 ILCS 5/12-701. Section 707 states that the judgment operates as a lien on the non-exempt property of the debtor "held by the garnishee at the time of service of the garnishment summons and remains a lien thereon pending the garnishment proceeding." The bank ignored the lien by cashing the $12,000.00 check.

The appropriate remedy is the entry of a judgment against the garnishee. Actually, all turnover orders are judgments against the bank according to Section 711. The appropriate language for a turnover order is that "judgment shall enter in favor of defendant, and against garnishee/respondent, for the use of plaintiff, in the amount of _____." On Wednesday, I plan to enter a standard turnover order. When the bank says that it can't pay, I will begin collections against the bank. The question becomes whether the bank will try to recoup that money from my defendant, which could jeopardize my monthly payment plan. I'll keep you posted.

Wednesday, June 3, 2009

NIU Golf Outing

The NIU College of Law Golf Outing & Alumni Awards Dinner will be held on June 12, 2009 at River Heights Golf Course in DeKalb. The Northern Law Blog is once again sponsoring a hole at the golf outing.

The Northern Law Blog Finance Committee has also once again authorized me to offer a free drink to one lucky Law Blog reader. After reviewing the Law Blog budget, it was determined that the free drink would go to the first Law Blog reader to ace the eighteenth hole.

To get in the spirit, I am asking for commenters to give their favorite Caddyshack quotes. I hope to see some of you on June 12th.

Monday, June 1, 2009

Violations of the Automatic Stay

Pete Bastianen's last post did a great job of explaining when the automatic stay is limited to thirty days and when it is terminated in its entirety. But, when the automatic stay is in effect, does a violation require an affirmative act, or can the automatic stay be violated by failing to act at all?

A recent case out of the 7th Circuit says that a creditor can violate the automatic stay by failing to act. In Re Kuehn, 563 F.3d 289 (2009), concerned a student enrolled at a two-year master's degree program at Cardinal Stritch University. The student fell behind nearly $6,000 on her tuition, but was still allowed to complete her classes and graduate. After graduation, the student requested a copy of her transcripts from the school. The school did not provide the transcript, presumably in an attempt to get paid. Then, the student filed bankruptcy. After filing, the student again requested the transcripts and was again denied.

In ruling that the school's refusal to provide the transcript violated the automatic stay, the court applied the "coercive effects" test, which says that a creditor acts to collect a debt if it acts or fails to act in a coercive manner with the sole purpose of collecting a debt. Because the transcript had no intrinsic value to the university, and was essentially worth only as much as the paper on which it was printed (or less), the university was being coercive by withholding it from the student.