Cal Ct App: No Appeal From Stipulated Condemnation Judgment
Posted: 08 Feb 2011 12:01 AM PST
When is a final judgment in a condemnation case not appealable? When the appellant agreed that the trial cout's order resolved "all claims and issues" in the case and thus it reflected that no one could appeal, that's when.
City of Gardena v. Rikuo Corp., No. B217302 (Cal. Ct. App. Feb 7, 2011), the parties mediated the issues and entered into a settlement agreement, after which the trial court entered a final judgment. After entry of judgment, the trial court entered two additional orders awarding the City money from the deposit made to cover the costs of remediation. Although the City did not contest the appealability, the court of appeal asked for supplemental briefing on the jurisdictional issue.
The court concluded the orders were not appealable as "orders after judgment" since they followed a consent judgment, which is normally not appealable unless consent to judgment was provided "merely ... to facilitate an appeal following adverse determination of a critical issue." Order at 4 (citing Norgart v. UpJohn Co., 21 Cal. 4th 383, 400 (1999)). The court concluded that the property owner gave consent to the judgment in order to finally resolve the case, not to pave the way for an appeal:
The judgment in this case recites that it "resolves all claims and issues related to the taking of the Subject Property, including all claims and issues in the Inverse [Condemnation] Action as well as all claims and issues in this eminent domain action." Thus, by consenting to the judgment, the parties manifested their intent to settle their dispute fully and finally. This is not a case in which the parties stipulated to a judgment merely to facilitate an appeal following the adverse determination of a critical issue. The purpose of the stipulated judgment here was to resolve "all claims and issues" arising from the eminent domain and inverse condemnation actions, including claims and issues relating to the cost of the ongoing remediation on the subject property. As to such claims and issues involving remediation, the parties stipulated, in effect, to a dispute resolution mechanism by which the trial court would make factual determinations that would resolve those issues. Therefore, the parties in this case consented to a final judgment that is not appealable as a matter of law.
Order at 4 (footnote omitted). The court rejected the property owner's argument that "in eminent domain cases, the law allows parties to apply for a final order of condemnation after the full amount of the judgment has been deposited in the trial court or paid to the landowner." Order at 5. The court held that in those cases where the post-judgment orders are appealable, the judgment itself was contested. This triggers the appealability of the subsequent orders.
The court also held the property owner to the words of the stipulated judgment and settlement agreement, and rejected the argument that despite agreeing that the judgment resolved "all claims and issues" in the case, it really didn't mean that. "Here, the consent judgment expressly provides that it was intended to resolve all of the issues in controversy between the parties, including the manner in which disputes over the cost of remediation would be resolved. As a result, it would appear to be a final determination of the rights of the parties to the proceeding." Order at 8.
Appeal dismissed.

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Greg Kugle To Speak To HSBA On Shoreline Issues (2/18/2011)
Posted: 07 Feb 2011 06:42 PM PST
On Friday, February 18, 2011 from noon to 1:00 p.m., my Damon Key colleague
Greg Kugle will be speaking to the Hawaii State Bar Association's Real Property and Financial Services Section on Shoreline Issues. Greg chairs our firm's real estate and construction law practice group, and has been representing property owners on shorelines issues across the State of Hawaii for many years.
The presentation is free for HSBA members and will take place at the HSBA Confrerence Room, 1100 Alakea Street, Suite 1000. HSBA members from the neighbor islands can call in to a toll-free conference line (contact us for the instructions).

Vermont Law Review: Essay Reflections From The Amicus Curiae In The Judicial Takings Case
Posted: 07 Feb 2011 06:29 PM PST
VTLREV_coverAs we noted here (when we posted our article), the latest issue of the Vermont Law Review deals with the U.S. Supreme Court's "judicial takings" case, Stop the Beach Renourishment, Inc. v. Florida Dep't of Environmental Protection, 130 S.Ct. 2592 (June 17, 2010). 
In eight essays, the authors of several of the many amicus briefs add their post-opinion thoughts. Authors include Ilya Shapiro (Cato Institute), Professor John D. Echeverria (Vermont Law), and Julia Wyman (Marine Affairs Institute). The groundwork is laid in the first article, by Professor L. Kevin Wroth:
If hard cases make bad law, bizarre cases may make no law at all. The recent Supreme Court decision, Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection is a case in point. In the Essays that follow, the Vermont Law Review has brought together the reflections of seven lawyers, or teams of lawyers, for amici curiae in the case. The authors’ challenge was to consider the meaning and future implications of a decision in which no clear rationale emerged from the opinions.
at 413 (footnote omitted). The editors have now posted the entire volume here.
Here is the table of contents and links to the articles:
§ Hold Back the Sea: The Common Law and the Constitution, L. Kevin Wroth
§ Judicial Takings and Scalia's Shifting Sands, Ilya Shapiro & Trevor Burris
§ Of Woodchucks and Prune Yards: A View of Judicial Takings From the Trenches, Robert H. Thomas, Mark M. Murakami, & Tred R. Eyerly
§ Do we Really Need a Judicial Takings Doctrine, Richard Ruda
§ Stop the Beach Renourishment: Why the Judiciary is Different, John D. Echeverria
§ A Divided Ruling for a Divided Country in Dividing Times, Michael J. Fasano
§ In States we Trust: The Importance of the Preservation of the Public Trust Doctrine in the Wake of Climate Change, Julia B. Wyman

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