Elite Legacy Corporation v Schvaneveldt

Schvaneveldt appealed the denial of his Rule of Civil Procedure 60 motion in one case and the judgment for a real-estate broker fee in another case both of which arose out a failed land sale. The panel affirmed. It held that the rule 60 motion failed as there were no exceptional circumstances allowing relief under (b)(6); the person Schvaneveldt claimed is the only person with standing to sue isn’t mentioned in the brokerage agreement and there is no evidence the agent of Corporation and its successors signed with the intent that anyone beside Corporation and successors would be party to the agreement and thus no basis for relief under (b)(5); and that Schvaneveldt waived his (b)(4) issue by not raising capacity to sue as an affirmative defense. It affirmed as to the commission holding the language of the agreement required payment when seller caused the sale to fail, Schvaneveldt caused the sale to fail by refusing to issue the required warranty deed, there was no error in the district court’s ruling that Schvaneveldt could be personally liable as nothing in the agreement indicates he signed the agreement as a representative of the limited liability company owner of the property and held Corporation should be awarded attorney fees on appeal as a prevailing party.

Wing v Still Standing Stable, LLC

Stable sued Wing and others alleging breach of fiduciary duties, negligence and misrepresentation in the failed land sale also at issue in Elite Legacy Corporation above and that Wing and the others lacked standing to sue for a commission. The panel affirmed. It affirmed on the fiduciary duty, negligence and misrepresentation claims as Stable failed to challenge the district court’s ruling that the failure to convey the property by general warranty deed or special warranty deed with guarantees of access caused any damages here. It affirmed on standing as Stable failed to identify the order it sought review of and waived its capacity to sue claim through failure to raise it as an affirmative defense.

Wing v Code

In the final opinion arising from the failed land sale, Wing appealed the award of attorney fees to Code. The panel affirmed. It held Wing joined the suit in his individual capacity as he did not identify himself as a representative of the brokerage or another entity and his attorney stated the first $10,000 recovered would go to Wing; he based his claims on the commission agreement and even sought fees under the agreement from Code’s husband and thus the reciprocity statue entitles Code to fees; and his claim was under the brokerage agreement not a purchase agreement. It also awarded attorney fees incurred on appeal to Code.

State v Samulski

Samulski appealed his prison sentence. The panel affirmed but remanded to resolve objections to the presentence report. It held there was no breach of the plea agreement here as the prosecutor stated he was bound to recommend no prison time and made that recommendation and the fact he also pointed out the victim and probation services recommend prison time did not constitute a breach. It held that the district court should have made findings about the objections and remanded for that purpose, but held there was no harm here as the district court appears to have treated the objections as sustained. It finally held there was no ineffective assistance as there was no breach of pela agreement to object to and any error from not asking for rulings on the objections will be resolved on remand.

Cheek v Clay Bulloch Construction Inc.

Cheek appealed the failure of the trial judge to recuse himself and the dismissal of his claims. The panel affirmed. It held that the recusal issue was not properly before the court as Cheek did not make a motion under Rule of Civil Procedure 63 and in any event waived his right to move for recusal by filing his motion to recuse well after the 20 day deadline. Alternatively, the panel held that Cheek failed to provide a factual basis for recusal as he did not provide any evidence as to whether the trial judge actually had a close working relationship with the court clerk who was married to Bulloch. It held that Cheek inadequately briefed the dismissal of claims issue.