DOCSLIB.ORG

Lessons Learned in the Synthetic Stucco Litigation

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Lessons Learned in the Synthetic Stucco Litigation Litigation ReportTM Trichilo, Bancroft, McGavin, Horvath & Judkins, P.C. are pleased to welcome three new associates to the firm. Quarterly Publication Published by: Trichilo, Bancroft, McGavin, Horvath & Judkins, P.C. 3920 University Drive Post Office Box 22 Fairfax, Virginia 22030-0022 Volume 2, Issue 2 March 2005 703.385.1000 703.385.1555 fax www.vadctriallaw.com Lessons Learned email: in the Synthetic Stucco Litigation Letters to the Editor: By: Stephen A. Horvath, Esquire Melissa H. Katz, Esquire [email protected] Starting in the early 1990’s an exterior cladding for houses known as “EIFS” (Exterior Insulation Finish System) became c 2005 All Rights Reserved Pictured left to right is Stephen A. Marshall, Jennifer L. McRobbie, and Jeremy Paner popular in the Washington Metropolitan area. The product had a number of advantages. It looked like stucco, but did not have the weight of stucco, and would not crack like stucco. It had an insulation quality to it. There was a layer of a Styrofoam type product which made it as though you were wrapping your house in a Styrofoam cooler. It was decorative and could be easily shaped, to add attractive features to the exterior of the house. Finally, its finish was impervious to water, and would in theory keep water out. The use of this popular cladding resulted in a large number of and new law was developed by the Circuit Court and Virginia subcontractors being trained by the manufacturers of the product Supreme Court. to install it on houses. Although some very strict installation The first two cases that were tried by other firms in Fairfax requirements were set up, the subcontractors would frequently County resulted in verdicts of approximately $1.4 million and Trichilo, Bancroft, McGavin, Horvath & Judkins, P.C. PRESORTED not follow the requirements. As a result, water could infiltrate $1 million. In those cases, there were no aggressive challenges 3920 University Drive • Post Office Box 22 FIRST-CLASS between the house sheathing, and the EIFS, and the water would to the plaintiffs’ experts and the attorneys “ran away” from the U.S. POSTAGE be trapped. Over time, the elevated moisture levels would cause benefit and quality of the EIFS product. The third case in Fairfax Fairfax, Virginia 22030-0022 PAID rotting of the wood sheathing and framing. County, which was tried by this firm, resulted in a $17,000 FAIRFAX, VA In the mid to late-1990’s, as a result of newspaper articles verdict, which was reduced to zero because of a prior settlement Permit No. 6241 and TV programs, the public became aware of a number of with the installer. While the Court did award costs and attorney’s serious potential problems. For many of the homeowners the fees, the attorney’s fees awarded were one-seventh of the amount time for which to make a warranty claim under their purchase requested. agreement had expired. Plaintiffs’ attorneys were left to try a Successful handling of these cases depended upon a number number of novel approaches, including alleged fraud, or violation of factors: First, at the pleadings stage, the allegations were of consumer protection acts to develop a theory for recovery. aggressively challenged by use of demurrers and motions craving With leaky homes and huge bills for repair, the oyer. While the plaintiffs’ attorneys attempted to sue subcontractors homeowners were sympathetic plaintiffs. directly, through successful use of motions, most, if not all, the The fraud allegation usually went like this: claims directly against the “I contracted to buy stucco. Stucco should be subcontractors were a cement based product which has been used ultimately dismissed. Inside for hundreds of years. The product you put Second, although EIFS did on my house is Styrofoam and plastic. You have its problems, the idea Synthetic Stucco Litigation .......1 have lied to me.” Hundreds of lawsuits were behind EIFS was excellent. filed alleging stucco defects in the Northern It was a good idea, but had Economic Loss Rule .................3 Virginia area. The Fairfax Circuit Court to be carefully installed. created a special three judge panel to Attorneys who attempted Frolic or Detour ..........................3 hear the stucco cases, to provide for to shift the burden to EIFS uniformity in the decision making. on behalf of their Payment by Debtors .................4 This firm handled almost one hundred defendants, or who agreed of these cases, representing both the subcontractors and the that the product was fraught with Picking an Expert.......................5 general contractors. We were successful in either having the cases problems, continued to have dismissed, or reaching resolutions on the cases, and paying only a problems with their defenses. If General Assembly Update ......6 small amount of the damages claimed. A number of lessons were the product was embraced, and it learned in how to handle the homeowner building defect cases, continued on page 7 Worker’s Compensation ......2 continued from page 1 Workers’ 1999). In that case, the employer requested review of a Deputy was explained that there were a few minor problems which that at this time. If you do not include any statement, it will be By: Commissioner’s decision holding that a pending claim for disability could be fixed, the results were better. Third, the plaintiffs’ assumed that you are not relying upon any verbal statement or representation made by the seller in entering into this contract.” Compensation Benjamin J. Trichilo, Esquire benefits survived the claimant’s death from an unrelated cause. experts were frequently individuals who had little or no Because a significant legal issue was involved, the full Commission experience with the use of EIFS prior to being involved in the When the purchaser would later claim fraud in reliance on Corner considered the appeal, and upheld the Deputy Commissioner’s ruling EIFS litigation. One expert from North Carolina was used in what they were told about “stucco”, this statement from the that the claim did survive the claimant’s death. hundreds of the cases in this area. He had been involved in so contract would then be read back to them, and a number of the many cases, that within a few years time, his company’s total homeowners would confirm that it was correct, they did not Another example is provided by Grimes v. A-1 Towing, VWC File fees for examination and testing exceeded $3 million. Out of rely on any statements. Number 155-46-42 (December 22, 1997) where the Commission over 1,200 houses that he examined, he found the product Finally, after the first wave of lawsuits, some of the builders heard an appeal by the claimant requesting that a witness subpoena defectively installed over 1,200 times. Although he had never brought a second wave of lawsuits against their subcontractors 1. Death of claimant allows insurer to withdraw settlement: for a deposition be quashed. The Commission noted that interlocutory had any experience in the installation, application or repair of attempting to recover for money they paid out to homeowners to Liability settlements are generally governed by principles appeals are normally not appropriate for evidentiary matters, unless EIFS prior to being involved in litigation, he was an “expert” on re-clad the houses. In this second wave of lawsuits, some of the of contract law: timely acceptance of an offer creates a binding there is a showing of good cause. The Commission found that the subject who stated that it was always defective, and could builders were not very successful because of the inaccuracies agreement. The rules for settlements under the Virginia Workers’ substantial prejudice would result if it did not rule on the motion, not be installed correctly. Aggressively challenging the expert in how they identified themselves to their subcontractors, and Compensation Act are much different. Settlements are not binding heard the appeal of the claimant, denied the motion to quash, and helped in the final resolution of the cases. to their sellers. They had set up so many different entities for until approved by the Virginia Workers’ Compensation Commission. allowed the deposition requested by the employer to proceed. Because the claims were fraud based, some of the seller’s construction of the house versus sales versus ownership of the property, that they became bogged down in their own web of Even after the settlement Order is entered, the Commission has contracts allowed for additional defenses that were not available 3. When are employers subject to the Act? to other sellers. Some of the contractors included paragraphs in entities, and were unable to establish a claim against the discretionary authority to vacate that award within twenty-one days Every employer that regularly employs three or more employees their contracts which stated to the effect as follows: “Frequently subcontractors. for good cause. “Good cause” may be simply a change of mind disputes arise between the purchaser and the seller because of Most of the EIFS litigation has been concluded. The lessons by the claimant. Should that occur, then the settlement proceeds in the Commonwealth of Virginia is subject to the jurisdiction of the Virginia Workers’ Compensation Commission, and is required to confusion of what may have been said at the time the parties learned can help establish ways to handle future construction must be returned before the Commission will vacate the settlement negotiated the contract. As a result, if you intend to rely on any defects claims. Order. carry Workers’ Compensation insurance. The burden of proving that the employer does not regularly conduct business with three or more statement or representation made by the seller, please include In a recent full Commission decision, Pringle v. WMATA, employees is upon the employer.
Load more

Recommended publications
  • The Boundaries of Vicarious Liability: an Economic Analysis of the Scope of Employment Rule and Related Legal Doctrines
    University of Chicago Law School Chicago Unbound Journal Articles Faculty Scholarship 1987 The Boundaries of Vicarious Liability: An Economic Analysis of the Scope of Employment Rule and Related Legal Doctrines Alan O. Sykes Follow this and additional works at: https://chicagounbound.uchicago.edu/journal_articles Part of the Law Commons Recommended Citation Alan O. Sykes, "The Boundaries of Vicarious Liability: An Economic Analysis of the Scope of Employment Rule and Related Legal Doctrines," 101 Harvard Law Review 563 (1987). This Article is brought to you for free and open access by the Faculty Scholarship at Chicago Unbound. It has been accepted for inclusion in Journal Articles by an authorized administrator of Chicago Unbound. For more information, please contact [email protected]. VOLUME 101 JANUARY 1988 NUMBER 3 HARVARD LAW REVIEW1 ARTICLES THE BOUNDARIES OF VICARIOUS LIABILITY: AN ECONOMIC ANALYSIS OF THE SCOPE OF EMPLOYMENT RULE AND RELATED LEGAL DOCTRINES Alan 0. Sykes* 441TICARIOUS liability" may be defined as the imposition of lia- V bility upon one party for a wrong committed by another party.1 One of its most common forms is the imposition of liability on an employer for the wrong of an employee or agent. The imposition of vicarious liability usually depends in part upon the nature of the activity in which the wrong arises. For example, if an employee (or "servant") commits a tort within the ordinary course of business, the employer (or "master") normally incurs vicarious lia- bility under principles of respondeat superior. If the tort arises outside the "scope of employment," however, the employer does not incur liability, absent special circumstances.
    [Show full text]
  • Civil Remedies for Sexual Assault
    Civil Remedies for Sexual Assault ________________ A Report prepared for the British Columbia Law Institute by its Project Committee on Civil Remedies for Sexual Assault _______________ The members of the Project Committee are: Professor John McLaren - Chair Megan Ellis Dr. Roy O’Shaughnessy Etel Swedahl Professor Christine Boyle Arthur L. Close, Q.C. (Executive Director, BCLI) Jennifer Koshan - Reporter BCLI Report No. 14 June, 2001 British Columbia Law Institute 1822 East Mall, University of British Columbia, Vancouver, B.C., Canada V6T 1Z1 Voice: (604) 822-0142 Fax:(604) 822-0144 E-mail: [email protected] WWW: http://www.bcli.org ----------------------------------------------- The British Columbia Law Institute was created in 1997 by incorporation under the Provincial Society Act. Its mission is to: (a) promote the clarification and simplification of the law and its adaptation to modern social needs, (b) promote improvement of the administration of justice and respect for the rule of law, and (c) promote and carry out scholarly legal research. The Institute is the effective successor to the Law Reform Commission of British Columbia which ceased operations in 1997. ----------------------------------------------- The members of the Institute Board are: Thomas G. Anderson Trudi Brown, Q.C. Arthur L. Close, Q.C. (Executive Director) Prof. Keith Farquhar Sholto Hebenton, Q.C Ravi. R. Hira, Q.C. Prof. Hester Lessard Prof. James MacIntyre, Q.C.(Treasurer) Ann McLean (Vice-chair) Douglas Robinson, Q.C. Gregory Steele (Chair) Etel R. Swedahl Kim Thorau Gordon Turriff (Secretary) ----------------------------------------------- The British Columbia Law Institute gratefully acknowledges the financial support of the Law Foundation of British Columbia in carrying out its work.
    [Show full text]
  • A Revolutionary Approach to the Eggshell Plaintiff Rule Steve Calandrillo University of Washington School of Law
    CORE Metadata, citation and similar papers at core.ac.uk Provided by UW Law Digital Commons (University of Washington) University of Washington School of Law UW Law Digital Commons Articles Faculty Publications 2013 Eggshell Economics: A Revolutionary Approach to the Eggshell Plaintiff Rule Steve Calandrillo University of Washington School of Law Dustin E. Buehler Follow this and additional works at: https://digitalcommons.law.uw.edu/faculty-articles Part of the Torts Commons Recommended Citation Steve Calandrillo and Dustin E. Buehler, Eggshell Economics: A Revolutionary Approach to the Eggshell Plaintiff Rule, 74 Ohio St. L.J. 375 (2013), https://digitalcommons.law.uw.edu/faculty-articles/130 This Article is brought to you for free and open access by the Faculty Publications at UW Law Digital Commons. It has been accepted for inclusion in Articles by an authorized administrator of UW Law Digital Commons. For more information, please contact [email protected]. Eggshell Economics: A Revolutionary Approach to the Eggshell Plaintiff Rule STEVE P. CALANDRILLO* & DUSTIN E. BUEHLER† For more than a century, courts have universally applied the eggshell plaintiff rule, which holds tortfeasors liable for the full extent of the harm inflicted on vulnerable “eggshell” victims. Liability attaches even when the victim’s condition and the scope of her injuries were completely unforeseeable ex ante. This Article explores the implications of this rule by providing a pioneering economic analysis of eggshell liability. It argues that the eggshell plaintiff rule misaligns parties’ incentives in a socially undesirable way. The rule subjects injurers to unfair surprise, fails to incentivize socially optimal behavior when injurers have imperfect information about expected accident losses, and fails to account for risk aversion, moral hazard, and judgment-proof problems.
    [Show full text]
  • I. A. Intellectual Approaches to Tort Law 1. Corrective Justice 2. Economic Approach/Deterrence Approach 3. Compensation Approac
    Torts, Sharkey Fall 2006, Dave Fillingame I. INTRODUCTION A. Intellectual Approaches to Tort Law 1. Corrective Justice 2. Economic Approach/Deterrence Approach 3. Compensation Approach B. Holmes: Two theories of common-law liability: 1. Criminalist (Negligence) 2. “A man acts at his own peril” (strict liability) 3. Judge People by an Objective not a Subjective Standard of Care C. Judge v. Jury in Torts II. INTENTIONAL TORTS A. Elements B. Physical Harms 1. Battery a. Eggshell Skull Rule (Vosburg v. Putney) b. Intent to Act v. Intent to Harm c. “Substantial Certainty” Test (Garratt v. Dailey) d. “Playing Piano” (White v. University of Idaho) e. “Transferred” Intent 2. Defenses to Battery: Consent a. Consent b. Consent: Implied License c. Consent to Illegal Acts 3. Defenses to Battery: Insanity 4. Defenses to Battery: Self-Defense and Defense of Others a. Can be used as a defense when innocent bystanders harmed b. Can be used in defense of third-parties c. Must be proportional force 5. Defenses to Battery: Necessity C. Trespass to Land 1. No Damage is Required, Unauthorized Entry on Land is Enough a. An unfounded claim of right does not make a willful entry innocent. b. Quarum Clausum Fregit 2. Use of Deadly Force in Protection of Property a. Posner: We Must Create Incentives to Protect Tulips and Peacocks. b. Use Reasonable Force: Katko v. Briney (Iowa 1971) 3. Defense of Privilege a. Privilege of Necessity b. “General Average Contribution” c. Conditional (Incomplete) Privilege Vincent v. Lake Erie (Minn. 1910) d. The privilege exists only so long as the necessity does.
    [Show full text]
  • Sexual Assault Awareness & Consent Education As Tools for Campus
    Sexual Assault Awareness & Consent Education as Tools for Campus Culture Change Introductions What Does Sexual Assault Awareness Mean? It’s On Us Definitions National Policies and Protections for Survivors of Sex Crimes Contents Title IX, Clery, VAWA Sexual Assault as a Public Health Issue Available Programs on Sexual Assault Awareness Getting the Word Out! INTRODUCTIONS WHAT IS SEXUAL ASSAULT AWARENESS? Sexual Assault Awareness Is... Programs, trainings, or events that provide awareness on the meaning of consent, the prevalence of, and policies related to campus sexual assault. Components: ● Programs: ○ What are your rights? ○ How is your school providing this information? ○ How often do you receive this information? ● Events: ○ How do you make people aware of this issue? ● Trainings: ○ Who is at the table to provide the information you do have to the rest of your campus community? NATIONAL POLICIES & PROTECTIONS FOR SURVIVORS Definitions Sexual Assault ● Sexual contact or behavior that occurs without explicit consent of the victim ● Includes rape and unwanted sexual touching, among others Sexual Harassment ● Unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature in the workplace or learning environment ● Does not have to be of a sexual nature; can include offensive remarks about a person’s sex in general Dating Violence ● Physical, sexual, emotional, or verbal abuse from a romantic or sexual partner ● Includes emotional/verbal abuse, sexual assault/rape, and physical abuse Definitions
    [Show full text]
  • Criminal Negligence) Penal Law § 120.00(3) (Committed on Or After Nov
    ASSAULT IN THE THIRD DEGREE (Criminal Negligence) Penal Law § 120.00(3) (Committed on or after Nov. 1, 1986) 1 Revised April, 2018 1 The (specify) count is Assault in the Third Degree. Under our law, a person is guilty of Assault in the Third Degree when, with criminal negligence, that person causes physical injury to another person by means of a of a deadly weapon [or dangerous instrument]. The following terms used in that definition have a special meaning: PHYSICAL INJURY means impairment of physical condition or substantial pain.2 A person acts with CRIMINAL NEGLIGENCE with respect to physical injury by means of a deadly weapon [or dangerous instrument] when that person engages in conduct which creates or contributes to a substantial and unjustifiable risk that physical injury to another person by means of a deadly weapon [or dangerous instrument] 1 This charge applies when the crime was committed on or after November 1, 1986, except as to the following weapons which were added to the definition of "deadly weapon" [Penal Law § 10.00(12)] after that date: November 1, 1995, was the effective date of an amendment to the definition of "deadly weapon" to add a "metal knuckle knife." L. 1995, ch. 219. November 1, 2008, was the effective date of an amendment to that definition to add "plastic knuckles." L. 2008, ch. 257. The 2018 revision was (1) to move the opening paragraph of the definition of “criminal negligence” to the end of the definition and otherwise conform it to the paragraph at the end of the definition of “criminal negligence” in the charge for criminally neglient homicide (Penal Law § 125.10, and (2) to include in the definition of "deadly weapon" both statutory additions and decisional law definitions of weapons as set forth in footnote 5.
    [Show full text]
  • Eggshell" Victims, Private Precautions, and the Societal Benefits of Shifting Crime
    Michigan Law Review Volume 105 Issue 2 2006 "Eggshell" Victims, Private Precautions, and the Societal Benefits of Shifting Crime Robert A. Mikos University of California, Davis, School of Law Follow this and additional works at: https://repository.law.umich.edu/mlr Part of the Criminal Law Commons, Law and Economics Commons, and the Law and Society Commons Recommended Citation Robert A. Mikos, "Eggshell" Victims, Private Precautions, and the Societal Benefits of Shifting Crime, 105 MICH. L. REV. 307 (2006). Available at: https://repository.law.umich.edu/mlr/vol105/iss2/2 This Article is brought to you for free and open access by the Michigan Law Review at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Michigan Law Review by an authorized editor of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. "EGGSHELL" VICTIMS, PRIVATE PRECAUTIONS, AND THE SOCIETAL BENEFITS OF SHIFTING CRIME Robert A. Mikos* Individuals spend billions of dollars every year on precautions to protect themselves from crime. Yet the legal academy has criticized many private precautions because they merely shift crime onto other, less guarded citi- zens, rather than reduce crime. The conventional wisdom likens such precaution-taking to rent-seeking: citizens spend resources to shift crime losses onto other victims, without reducing the size of those losses to soci- ety. The result is an unambiguous reduction in social welfare. This Article argues that the conventional wisdom is flawed because it overlooks how the law systematically understates the harms suffered by some victims of crime,first, by ignoring some types of harm altogetherin grading and sen- tencing decisions, and second, by ignoring wide disparities in the amount of harm caused in individual cases.
    [Show full text]
  • Statute of Limitation in Federal Criminal Cases: an Overview
    Statute of Limitation in Federal Criminal Cases: An Overview Charles Doyle Senior Specialist in American Public Law November 14, 2017 Congressional Research Service 7-5700 www.crs.gov RL31253 Statute of Limitation in Federal Criminal Cases: An Overview Summary A statute of limitations dictates the time period within which a legal proceeding must begin. The purpose of a statute of limitations in a criminal case is to ensure the prompt prosecution of criminal charges and thereby spare the accused of the burden of having to defend against stale charges after memories may have faded or evidence is lost. There is no statute of limitations for federal crimes punishable by death, nor for certain federal crimes of terrorism, nor for certain federal sex offenses. Prosecution for most other federal crimes must begin within five years of the commitment of the offense. There are exceptions. Some types of crimes are subject to a longer period of limitation; some circumstances suspend or extend the otherwise applicable period of limitation. Arson, art theft, certain crimes against financial institutions, and various immigration offenses all carry statutes of limitation longer than the five-year standard. Regardless of the applicable statute of limitations, the period may be extended or the running of the period suspended or tolled under a number of circumstances, such as when the accused is a fugitive or when the case involves charges of child abuse, bankruptcy, wartime fraud against the government, or DNA evidence. Ordinarily, the statute of limitations begins to run as soon as the crime has been completed. Although the federal crime of conspiracy is complete when one of the plotters commits an affirmative act in its name, the period for conspiracies begins with the last affirmative act committed in furtherance of the scheme.
    [Show full text]
  • UNITED STATES DISTRICT COURT DISTRICT of MASSACHUSETTS GEORGE LABADIE and SUSAN CARCIERI
    Case 4:05-cv-40148-FDS Document 132 Filed 01/09/15 Page 1 of 14 UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS _______________________________________ ) GEORGE LABADIE and SUSAN ) CARCIERI, ) ) Plaintiffs, ) ) v. ) Civil Action No. ) 05-40148-FDS DANIEL ROSARIO, STANLEY ) CARPENTER, BRIAN HACKETT, W-G ) FEDERAL CREDIT UNION, JOHN DOE 1, ) JOHN DOE 2, JOHN DOE 3, JOHN DOE 4, ) JOHN DOE 5, and THE CITY OF ) WORCESTER, ) ) Defendants. ) _______________________________________) MEMORANDUM AND ORDER ON MOTION FOR SUMMARY JUDGMENT SAYLOR, J. This is a civil rights action arising out of the investigation, questioning, and detention of plaintiffs George Labadie and Susan Carcieri by City of Worcester police officers. The events in question occurred after an alleged robbery at the credit union at which Carcieri worked. Labadie and Carcieri were suspected of having committed the crime themselves, and were eventually convicted of various criminal charges. Plaintiffs have sued the City of Worcester and eight of its police officers, including five “John Doe” defendants, for various alleged violations of their civil rights. Defendants have moved for summary judgment. For the following reasons, the motion will be granted. Case 4:05-cv-40148-FDS Document 132 Filed 01/09/15 Page 2 of 14 I. Background The facts are presented in the light most favorable to the plaintiff. A. Plaintiffs’ Allegations and Complaint On August 27, 2002, the W-G Federal Credit Union in Worcester was robbed. Susan Carcieri was an employee of the credit union. George Labadie was her husband. The complaint alleges that while Carcieri was opening the credit union for business in the morning, she was grabbed from behind by an unknown assailant who then tied her up, robbed the safe, and fled with the money.
    [Show full text]
  • Torts: Assault, Battery W
    Notre Dame Law Review Volume 17 | Issue 1 Article 1 11-1-1941 Torts: Assault, Battery W. D. Rollison Follow this and additional works at: http://scholarship.law.nd.edu/ndlr Part of the Law Commons Recommended Citation W. D. Rollison, Torts: Assault, Battery, 17 Notre Dame L. Rev. 1 (1941). Available at: http://scholarship.law.nd.edu/ndlr/vol17/iss1/1 This Article is brought to you for free and open access by NDLScholarship. It has been accepted for inclusion in Notre Dame Law Review by an authorized administrator of NDLScholarship. For more information, please contact [email protected]. NOTRE DAME LAWYER A Quarterly Law Review VOL. XVII NOVEMBER, 1941 NO. 1 TORTS: ASSAULT; BATTERY BATTERY Definition. A harmful, or an offensive, touching of the plaintiff's person, caused directly or indirectly by a volun- tary act .of the defendant with an intention to inflict a harm- ful or an offensive touching, is a battery. Offensive Touching. A touching of another's person may be both offensive and harmful, or it may be merely offensive and not inflict substantial harm. A touching which is not harmful but which is offensive to a normal or reasonable person is a battery, and it subjects the actor to liability if the touching is not consented to or privileged. In this type of battery, it is the insult or offensiveness of the touching that is important and not damage in fact. A certain amount of contact with one's person must be tolerated in decent society. Thus, "if two or more meet in a narrow passage, and without any violence or design of harm, the one touches the other gently, it will be no battery."1 But "if any of them 1 Per Holt, C.
    [Show full text]
  • In the Supreme Court of Iowa
    IN THE SUPREME COURT OF IOWA No. 19–0712 Filed September 6, 2019 IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant, vs. JOHNATHAN LEE SEARS, Respondent. On review of the report of the Iowa Supreme Court Grievance Commission. The Iowa Supreme Court Attorney Disciplinary Board filed a complaint alleging the attorney violated the rule of professional conduct regarding commission of a criminal act. LICENSE SUSPENDED. Tara van Brederode and Crystal W. Rink, Des Moines, for complainant. Johnathan Lee Sears, Ankeny, pro se. 2 CHRISTENSEN, Justice. The Iowa Supreme Court Attorney Disciplinary Board (Board) charged an Iowa attorney with violations of Iowa Rule of Professional Conduct 32:8.4(b) (commission of a criminal act) in connection with convictions for operating while intoxicated (OWI), domestic abuse assault causing bodily injury, and several instances of violating a no-contact order. After a hearing, the Iowa Supreme Court Grievance Commission found the alleged violations had occurred and recommended the attorney be suspended for one year without the possibility of early reinstatement. Upon our de novo review, we conclude the attorney violated rule 32:8.4(b) as alleged in counts I, II, and III. We order that his license be suspended indefinitely with no possibility of reinstatement for two years. I. Background Facts and Proceedings. Johnathan Sears is an attorney admitted to the Iowa bar in September of 2017. He is a partner at the Des Moines law firm of Clark & Sears Law. Five months after his admittance, on February 6, 2018, law enforcement located Sears on a highway in Polk County pushing a heavily damaged, disabled vehicle.
    [Show full text]
  • Forcible Trespass to Personal Property David J
    NORTH CAROLINA LAW REVIEW Volume 40 | Number 2 Article 3 2-1-1962 Forcible Trespass to Personal Property David J. Sharpe Follow this and additional works at: http://scholarship.law.unc.edu/nclr Part of the Law Commons Recommended Citation David J. Sharpe, Forcible Trespass to Personal Property, 40 N.C. L. Rev. 252 (1962). Available at: http://scholarship.law.unc.edu/nclr/vol40/iss2/3 This Article is brought to you for free and open access by Carolina Law Scholarship Repository. It has been accepted for inclusion in North Carolina Law Review by an authorized administrator of Carolina Law Scholarship Repository. For more information, please contact [email protected]. FORCIBLE TRESPASS TO PERSONAL PROPERTY DAVID J. SHARPE* In contrast to forcible trespass to real property, there is no case authority for the existence of forcible trespass to personal property in England,' and Chief Justice Ruffin said in 1837 that he found no authority in any textbook for it.' But this is not to suggest that forcible trespass to personal property was made up one day by the North Carolina Supreme Court out of whole cloth. The principle of an indictable trespass, a trespass with a strong hand against a person presently in possession of property, was firmly established in the English real property cases. And given the principle, there was no reason to confine its operation to real property. Forcible trespass to personal property was in use in North Carolina as early as 1792 ;3 and the North Carolina court, while regarding forcible trespass to personal property as confined to this state,4 has never shown concern whether the crime existed, or if so, upon what authority; rather, the court has toiled in its opinions to articulate the elements of the crime and the proper scope of its operation.
    [Show full text]