You Be the Judge: Reader Favorite: Looking for a Fair Way

In 1977, Nebraska businessman and avid golfer Dennis Circo developed an exclusive residential neighborhood dubbed Skyline Woods. Its centerpiece was an 18-hole golf course. As the developer, Circo sold lots, built homes, and transformed the golf course into a country club, adding a clubhouse, pool, and tennis courts. With all of its amenities, buyers paid a premium for home lots.

By 1990, Skyline Woods was well established, with 90 homes built around the country club, and Circo thought the time was right to sell the club to a golf course management company. Unfortunately, the golf pros ran into financial hazards. They ran out of “green,” and the only course of action was for Skyline Woods Country Club to file for bankruptcy in 2004. To pay off debt, the bankruptcy trustee auctioned off the property in 2005. A group of Skyline Woods homeowners tried to buy the club, but were outbid by Liberty Building Corporation, a development company owned by David Broekemeier.

Here’s where things got sticky. The federal bankruptcy court transferred property to Liberty, free and clear of all obligations. Shortly after, Broekemeier met with homeowners and club members to inform them he had no obligation to honor memberships, offering the option to play the course if they paid fees like anyone else.

If that was bad, what happened next was worse. In spring 2006, Broekemeier closed the club, posted “no trespassing” signs, and began cutting down trees to clear land where he planned to build a condominium complex and water park. Teed-off homeowners sued Broekemeier in Nebraska State Court, requesting a restraining order to prevent further damage to the land. They claimed implied covenants as homeowners in the golf community guaranteed the only use of land was as a golf course.

They reasoned Broekemeier might own the golf course free and clear but was free only to use it as a golf course. Homeowners added that no matter how you slice it, Broekemeier was well aware of their covenants, as he had also built a golf community adjacent to Skyline Woods. And, like Circo, he marketed the course’s proximity and views to sell lots. And there were rumors that he was going to redirect the golf course toward his neighborhood, leaving Skyline Woods homeowners with views of condos and a water park.

In response, Broekemeier came out swinging with a motion to dismiss the case. His first argument was that the state court had no jurisdiction to interfere with the federal bankruptcy order. Second, even if the state court did have skin in the game, the covenants were unenforceable because they were never recorded. Finally, he said Nebraska law protects bona fide purchasers from restrictive covenants when there is no notice.

How Would You Rule?

District Court Decision — 2008:

Round one was won by the homeowners. A Nebraska court found that they did indeed have implied restrictive covenants; Broekemeier was aware of the covenants; and finally, the bankruptcy sale of the property did not discharge the covenants because they belonged to the homeowners, not the golf course. The court ordered Broekemeier to either reopen the golf course or maintain it in a fashion that would not devalue the property of homeowners. Broekemeier chose the latter.

Round two: After six years of legal turf wars, the golf course never reopened, eventually becoming an eyesore due to lack of maintenance.

Aftermath — 2012: Game over. The land was sold. At that time, the new owner planned to spend $7 million to build a premier golf course.

This reader favorite originally appeared in the July/August 2012 issue of The Saturday Evening Post and was republished in the May/June 2020 issue. Subscribe to the magazine for more art, inspiring stories, fiction, humor, and features from our archives.

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You Be the Judge: Yelp for Help

On August 20, 2012, San Francisco attorney Dawn Hassell signed an agreement to represent Ava Bird in a personal injury claim. Less than a month later, Hassell withdrew her representation because Bird was unresponsive to communications.

On January 28, 2013, Bird posted a one-star Yelp review about the attorney, writing that her case had “fallen through the floor” because Hassell had reneged on their agreement, adding that Hassell’s law firm didn’t “bother to communicate with me, the client, or the insurance company AT ALL” before withdrawing from the case on September 13, 2012.

Hassell sent a message to Bird, requesting she remove “factual inaccuracies and defamatory remarks” from Yelp. Bird refused and shortly after posted another negative review about the attorney’s firm using a fake name.

In response, Hassell posted a reply, stating that she “welcomed constructive criticism from clients” but took issue with Bird’s “malicious and untruthful review,” adding that during the 25 days she represented Bird, Hassell had communicated with her at least 15 times (12 in writing) and spoke to her insurance provider at least twice before withdrawing from the case.

In April 2013, Hassell sued Bird for defamation and intentional infliction of emotional distress. Bird never answered the complaint, but did acknowledge the lawsuit on Yelp.

In January 2014, the trial court held a hearing on a motion for a default judgment against Bird. The judge considered documentary evidence from Hassell and granted a default judgment against Bird for defamation, ordering her to remove the defamatory posts and awarding Hassell $557,918.75 in damages. In addition, the court ordered Yelp to remove Bird’s defamatory posts within five days.

Neither Bird nor Yelp complied with the court order, and to add insult to injury, Yelp highlighted Bird’s reviews. Hassell accused Yelp of “aiding and abetting Bird’s violation of the injunction.”

In May 2014, Yelp appealed to the Court of Appeals of California to overturn the trial court’s entire default judgment against Bird, including the order for Yelp to remove her posts. Yelp argued that Bird had not received proper service of the complaint; that Yelp was not a named party in the lawsuit; and that it was immune from any liability under the Communications Decency Act of 1996 (CDA), which gives websites and social media companies broad immunity from civil cases over the content users publish on their platforms. 

How Would You Rule?

The Court of Appeals upheld the default judgment against Bird and ruled that Yelp was not immune from liability because removing the reviews posed no liability on Yelp. Bird was the only one liable for damages.

Yelp appealed to the California Supreme Court, which upheld the trial court’s default judgment against Bird. But in a 4–3 split, the court overturned the removal order against Yelp, finding that forcing a site to remove user-generated posts “can impose substantial burdens” on the online company. In the majority opinion, the chief justice wrote: “Even if it would be mechanically simple to implement such an order, compliance still could interfere with and undermine the viability of an online platform.”

A dissenting judge disagreed, warning, “The internet has the potential not only to enlighten but to spread lies, amplifying defamatory communications to an extent unmatched in our history.”

Bird’s defamatory reviews remain posted on Yelp. Bird has refused to comply with the injunction, and Yelp claims it is under no legal obligation to comply.

This article is featured in the March/April 2020 issue of The Saturday Evening Post. Subscribe to the magazine for more art, inspiring stories, fiction, humor, and features from our archives.

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You Be the Judge: No Love Lost

In April 2004, Frederick Ormsby and Amber Williams started a romantic relationship. Within a month, Frederick moved into Amber’s house, which she had received through her divorce settlement, and in July they became engaged. After moving in, Frederick began making mortgage and property tax payments, soon paying off the remaining mortgage balance of approximately $310,000. In return, Amber gave Frederick title to the house by signing a quitclaim deed that was recorded on December 15, 2004.

The romance began to cool in January when Frederick’s anticipated divorce did not occur. The couple called off marriage plans but continued to live together in the house until March, when, after a disagreement, Amber moved out. On March 24, 2005, the two signed an agreement to immediately sell the house and allocate the net proceeds, with the first $324,000 paid to Frederick to reimburse him for what he had already paid, and anything over that amount would go to Amber. Both parties agreed to share costs equally to maintain the house, and Amber assumed responsibility for real estate taxes.

As winter turned into spring — and before the house could sell — the romance heated up again; the couple tried to reconcile and attended couples counseling.

However, Amber refused to move back into the house unless Frederick granted her an undivided half-interest in it. On June 2, 2005, they signed a second document ostensibly making them equal partners in the house, entitled to equal shares in the event of a split. The new agreement also required Frederick to pay all expenses, taxes, and insurance costs.

What could possibly go wrong?

By April 2007, they were living in separate areas of the house, and although they tried counseling again, Amber ended the relationship in September 2007. The two continued living separately under the same roof until Frederick left in April 2008.

One month later, Amber filed suit against Frederick, seeking a court order forcing him to comply with the June 2005 agreement that vested her a half-interest in the house, or alternatively damages stemming from breach of that contract.

Frederick countersued, claiming he did not owe Amber any damages because both the March 2005 and June 2005 documents were invalid contracts because Amber gave no “consideration” — a legal term referring to the benefit that each party receives or expects to receive when entering into a contract.

Amber argued she did give Frederick valuable consideration, stating “I didn’t pay him anything, no. I thought what was of value was the fact that we were sharing all sorts of things. He had my love. I shared my assets with him, too. We were living together as a couple.”

How Would You Rule?

The trial court didn’t buy Amber’s argument, ruling that the June 2005 agreement which gave Amber half-interest in the home was invalid. She appealed to the Ohio Ninth District Court of Appeals, which reversed the trial court’s judgment, concluding that the agreement was valid since “romantic relationships typically involve some sacrifice by each partner.”

The story didn’t end there, however. The Supreme Court of Ohio reversed the appeals court judgment and ruled in Frederick’s favor. The court found that resuming a romantic relationship did not constitute valuable consideration — both parties must agree to offer something of value.

Bottom line for unmarried couples: To protect your relationship — and your assets — decide how you’ll own the property and check with a lawyer.

– Williams v. Ormsby, 2009

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This article is featured in the January/February 2020 issue of The Saturday Evening Post. Subscribe to the magazine for more art, inspiring stories, fiction, humor and features from our archives.

You Be the Judge: Military Malpractice

U.S. Navy Lt. Rebekah Daniel worked as a labor and delivery nurse at the Naval Hospital in Bremerton, Washington; her husband, Walter Daniel, was a lieutenant commander in the U.S. Coast Guard. In 2013, the couple learned that they were expecting a daughter. Rebekah arranged to resign from the Navy in May 2014, planning to use family leave after the birth of her daughter before her final detachment.

On March 9, 2014, Rebekah was admitted to Naval Hospital Bremerton, where she gave birth to her daughter. Although her pregnancy was considered low-risk, Rebekah suffered massive postpartum hemorrhaging and bled to death in 4 hours.

Following his wife’s unexpected death, Walter filed a Federal Tort Claim Act (FTCA) case against the Department of the Navy, claiming medical negligence and wrongful death resulting from the hospital’s failure to follow specific well-known standards of care to stop the bleeding, including an inexplicable delay in giving a life-saving blood transfusion.

In response, the attorney for the Department of the Navy argued, “Active-duty members are barred from seeking recovery against the government for injuries or wrongful death arising out of military service by the doctrine set forth by the U.S. Supreme Court in Feres v. United States 340 U.S. 135 (1950).” Since Rebekah was an active-duty service member at the time of her death, the case was dismissed.

Walter appealed the Navy’s decision to the U.S. District Court, explaining that the Feres doctrine did not apply because his wife’s injuries were not “incident to military service.” He argued that although his wife had active-duty status when she died, she had made it known she would not resume duties prior to her scheduled detachment from the Navy in May 2014 and had not engaged in military-related activities while in the hospital.

The U.S. Attorney moved to dismiss based on the Feres doctrine, and the District Court ruled, “Regretfully, this suit is barred by Feres.” The U.S. Court of Appeals upheld the dismissal but noted, “If ever there were a case to carve out an exception to the Feres doctrine, this is it. But only the Supreme Court has the tools to do so.”

Historically, citizens could not sue the government because of the doctrine of sovereign immunity. But in 1946, Congress enacted the FTCA, allowing citizens to sue the government for damaging acts of negligence. In 1950, the Supreme Court established an exception to the FTCA with the Feres doctrine, ruling that military members cannot sue the government under the FTCA.

Over the years, the Feres doctrine has been widely criticized, but the Supreme Court has continually upheld it because the distinctive relationship between the government and the armed forces necessitates a uniform system of compensation for soldiers stationed around the world. Another factor is the “generous” compensation system for soldiers in the Veterans’ Benefits Act. The issue being, should a soldier killed in action receive less than a soldier who dies because of medical malpractice?

How Would You Rule?

In 2018, Walter petitioned the Supreme Court to reconsider his appeal; his petition was denied. In his dissent from the decision, Justice Clarence Thomas warned, “Such unfortunate repercussions — denial of relief to military personnel and distortions of other areas of law to compensate — will continue to ripple through our jurisprudence as long as the Court refuses to reconsider Feres.”

Daniel v. United States

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This article is featured in the July/August 2019 issue of The Saturday Evening Post. Subscribe to the magazine for more art, inspiring stories, fiction, humor, and features from our archives.

You Be the Judge: Dubious Invitation

In the early morning of March 16, 2008, the Metropolitan Police Department of Washington, D.C., received a complaint about loud music and possible illegal activities at a vacant house in the city’s northeast corner. Inside the near-empty house, the officers found filthy floors littered with beer bottles and cups of alcohol, and women giving lap dances in bras and thongs. Upstairs they found a naked woman, several men, and a mattress on the floor.

Interviewed by the police, partygoers said they were there for a bachelor party — though no bachelor was identified — at the invitation of Peaches, a woman who had just left the house to go to the store. Contacted by phone, Peaches told police that she was renting the house and had given guests permission to have the party. When the police asked who had given her permission to use the house, she hung up. On a follow-up call, Peaches admitted she did not have a lease or the homeowner’s permission to use the property. With this information, the police arrested 21 people for unlawful entry. The partygoers were later released, and all charges were dropped. But in the aftermath, 16 of them sued the District of Columbia and five of the officers for false arrest, claiming they were arrested without probable cause. The plaintiffs argued that they had been invited onto the property by Peaches, and that no evidence suggested they intended to enter the house against the owner’s will. In response, the police officers claimed qualified immunity, which protects government officials from lawsuits unless the official violates “clearly established” statutory or constitutional rights “of which a reasonable person would have known.”

The Decision

In 2012, the district court ruled in favor of the partygoers. The judge found that they had entered the house with good intentions and a bona fide belief in their right to enter; therefore, they lacked the requisite criminal intent for unlawful entry. The court also denied the officers’ qualified immunity defense because there was no probable cause for unlawful entry. The jury awarded the partygoers $680,000 plus attorney fees. On appeal, the D.C. Circuit Court affirmed the decision.

But the story doesn’t end there. The defendants appealed to the Supreme Court, which overturned the lower courts’ decision. In the majority opinion, Justice Clarence Thomas found that Peaches’ invitation should not have been considered “uncontroverted evidence of an invitation to enter the premises,” adding that the “totality of the circumstances” suggesting criminal activity was enough to justify the arrest.

—District of Columbia et al. v. Wesby et al. (2017)

This article is featured in the March/April 2019 issue of The Saturday Evening Post. Subscribe to the magazine for more art, inspiring stories, fiction, humor, and features from our archives.

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