General

Restrictive Covenants Enforceable in Property Dispute Between Neighbors

On December 16, 1940, a restrictive covenant was recorded for the subdivision Denison Heights, where the parties live. That covenant provided that no structure shall be erected on a lot other than a detached single family dwelling. Although the restrictive covenant was recorded, it was not contained in the Cochrans’ deed when they purchased the property. In 2003, the Cochrans built a 30-foot tall “shop building.”

The court held that the restrictive covenant was not ambiguous and there had not been a change in conditions sufficient to warrant invalidation. Most of all, the court rejected the Cochrans’ defenses of waiver and estoppel because the Cochrans testified they still would have built the shop even if they had known about the restrictive covenant.

General

Neighbors Take Property by Adverse Possession

The Boyds purchased their property in 1981; it had a fence that separated property to the east, which the Roberts purchased in 1990. In 2002 the Boyds surveyed their property and found their boundary extended up to 96 feet inside the Roberts side of the fence. The Boyds sold the property to Winningham in 2004, who began tearing down the fence until he was enjoined by the trial court. After the Roberts v. Boyd decision, the trial court held the Roberts had adversely possessed the disputed property.

The Court of Appeals based its decision on the fact that the Roberts tended to the disputed tract of land. They spread fertilizer and planted grass as an exhibit of ownership. The court agreed that the Roberts satisfied all elements of adverse possession and affirmed the trial court’s ruling.

General

Sale of Property Fails for Lack of Consideration

The Yourees entered into a contract to sell property to the Eshaghoffs for a total of $1.05 million. The contract provided the Yourees had one year to surrender the property. If they did not, they would lease the property for $12,000 per month until surrender. The parties executed addenda that reduced the surrender time to 6 months and required the Eshaghoffs to lease the property for $18,000 per month for no more than 3 months if they failed to meet the surrender deadline.

The trial court found the addenda were enforceable and directed sale of the property. The court of appeals reversed, finding that the addenda were unenforceable because they provided no additional consideration . These addenda did not require the Yourees to do anything more than what they were already required to do.

General

Attorney-Client Privilege Applies (For Now) in Patent Dispute

Isensee sued HO Sports for patent infringement and moved to compel production of various documents. The products complained of were sold by H.O. Sports. In a clever transaction, HO Sports acquired the assets off H.O. Sports, but did not purchase the business. However, HO still claimed attorney-client privilege for various documents created by H.O. Sports.

HO has taken inconsistent positions in this action, which the court expressly noted. To avoid liability, HO claims it was not the successor of H.O. but just purchased assets. To claim attorney-client privilege, HO claims it is the successor of H.O.

The magistrate judge granted the motion to compel without addressing the merits of the privilege arguments. His decision was that the sale of assets cannot convey the privilege. The district court showed disapproval with HO Sports but reassigned the matter to the magistrate judge to consider the merits of the privilege arguments.