Bush Library Up In the Air- 5th Circuit tosses out judgment

[ponyboy]

One thing would make this more interesting from a legal standpoint is if Vodicka had a condo on the second floor, which is in effect owning a cube of air about ten feet off the ground.

[smu diamond m]

How is that more interesting than owning a cube of air sitting on the ground?

[Horse Hockey]

The case is about title, now that the Fifth Circuit vacated the summary judgment, and damages for destruction of the individually own units used as rent property and Vodicka's unit that he lived in.

There is common (joint) ownership in the common elements if Tafel or Vodicka has title. That means Tafel, Vodicka and Peruna all have a coextensive and equal right to use of and access to all the property (since the interior of the units was all that was individually owned and no longer exists).

[jtstang]

Boy, if SMU does not have a contingency plan to put the liberry elsewhere, Vodicka et al. could really have SMU over a barrel here. It's practically a name your price situation. Maybe an exhorbitant lease of Vodicka's interest? Of course, then the land would revert back to him at some point. Who knows? Should be interesting to watch. Maybe Judge Lowy pours them out for some other reason.

[EastStang]

Remember the issue for title is that the common elements are controlled by the Condo Association which voted to sell them to Peruna Properties. Vodicka already asked for a gazillion dollars. All this does is send it to state court. The question is one of purely local law and given that SMU's lawyers were pretty confident about all this before Vodicka went forum shopping, I suspect, they'll happily return to state court and this matter will be laid to rest. Remember Vodicka got it moved to Federal Court and then when he lost, said the Federal Court had no jurisdiction.

[jtstang]

SMU's biggest challenge will be the new judge in state court.

[mrydel]

You know, Clinton had a similar problem. One of Little Rock's citizens owned property where the Library was to be located, but he was unwilling to give it up. They went the eminent domain route and he challenged. It was ruled that eminent domain could not be used for a library. Clinton's group decided to call it a park and it was determined and ruled that eminent domain could be used to acguire property for a park. So we actually have a Clinton Park and not a Library.

[Horse Hockey]

Remember the issue for title is that the common elements are controlled by the Condo Association which voted to sell them to Peruna Properties. Vodicka already asked for a gazillion dollars. All this does is send it to state court. The question is one of purely local law and given that SMU's lawyers were pretty confident about all this before Vodicka went forum shopping, I suspect, they'll happily return to state court and this matter will be laid to rest. Remember Vodicka got it moved to Federal Court and then when he lost, said the Federal Court had no jurisdiction.

Wrong. No one challanged jursidiction in federal court. The Fifth Circuit opinion (go read it using the link previously provided) stated that there still is jurisdiction in federal court. The opinion states that after the title issue was carved out by Peruna's motion under Rule 54, the RICO claim was dropped in an amended complaint and the federal district court granted a remand of the remaining issues to state court back in 2007. The opinion states that the district court's decision regarding remand is a matter of discretion, so there is jurisdiction.

It appears that the Fifth Circuit panel didn't care to address the merits of the appeal when the panel reviewed the case and sent out the notice canceling the oral argument. It vacated the summary judgment for Peruna without reference to the merits with stongs hints that a remand to state court would be nice in keeping with comity. This is jurisprudential speak for "get it out of here and make the state court system deal with it." Ask yourself, with all three judges on the Fifth Circuit panel being recent W appointees, if Peruna had a clear winner on appeal and, as the opinion stated, there is jurisdiction in federal court, why didn't they just rule and affirm?

Stay tuned. Peruna has until the 29th to file a motion for rehearing. By the way, the case is not in Judge Lowry's court. He recused himself. Judge Hoffman has it.

SMU's biggest challenge will be the new judge in state court.

Don't think so. I think the biggest will be the jury when it goes to trial in October.

[Stallion]

No its being remanded to federal district court to apply the appropriate factors to determine whether the Court should retain the case. Its premature to say the federal court has made a determination on jurisdiction. I've had several cases deal with supplemental jurisdiction and have applied those factors-seriously doubt the federal court retains the case. I believe these are the factors:

The district courts may decline to exercise
supplemental jurisdiction over a claim under subsection
(a) if --
(1) the claim raises a novel or complex issue of
State law,
(2) the claim substantially predominates over the
claim or claims over which the district court has
original jurisdiction,
(3) the district court has dismissed all claims
over which it has original jurisdiction, or
(4) in exceptional circumstances, there are other
compelling reasons for declining jurisdiction.

[Stallion]

as for the State Court Judge-this thing might not get decided until after the election or before the winning judge takes over. It takes awhile for the mandate and case to get to each succeeding Court and of course, the litigants are going to have to brief the issues outlined by the 5th Circuit. Democrats won most if not all Dallas County races in the last election.

[jtstang]

Are Dallas County judges even up for election this year? Hoffman is a Dem too, and he's a new judge.

[couch 'em]

How legally wishy-washy is this thing? Will even a pinko-commie judge be forced to throw this out, or do we have a real potential problem with this new judge? Could he think he could make a name for himself with this case?

[ponyte]

So I understand the legal process of picking judges in TX, State Court judges are elected, is that correct? Are the appeals judges elected? If so, is it a state wide election or elections specific to a region? How are the judges for the State Supreme Court determined?

It seems that in Texas, even if the local judge is of one party, would not there be the possibility of more balanced judge selection in the appeals level courts?

[jtstang]

All state court judges in Texas are elected: trial courts, appellate courts and the supreme court. Local courts and appellate courts are elected locally, and the supremes on a statewide basis.

And no judge, pinko-commie or otherwise, is ever "forced" to throw anything out, and I imagine Mr. Vodicka will get his day in court. I can't recall the facts of the case very well, but the allegations are generally that SMU (Peruna properties) fraudulently obtained the property. Claims for fraud are usually fact intensive. As I recall it had something to do with the number of votes you get for each owned unit in the by-laws or somesuch. Maybe somebody else has a better recollection than I do.

[ponyte]

All state court judges in Texas are elected: trial courts, appellate courts and the supreme court. Local courts and appellate courts are elected locally, and the supremes on a statewide basis.

And no judge, pinko-commie or otherwise, is ever "forced" to throw anything out, and I imagine Mr. Vodicka will get his day in court. I can't recall the facts of the case very well, but the allegations are generally that SMU (Peruna properties) fraudulently obtained the property. Claims for fraud are usually fact intensive. As I recall it had something to do with the number of votes you get for each owned unit in the by-laws or somesuch. Maybe somebody else has a better recollection than I do.

Thanks.