Neighbors’ Constant Hoops Shooting Not ‘Objectively Offensive’ Enough to Merit Nuisance Liability – IL 4th Dist.

The Illinois 4th District recently bounced two homeowners’ lawsuit against their next-door neighbors for installing a basketball court on the neighbors’ property.  Fed up with the neighbor kids’ incessant basketball playing, the plaintiffs in Bedows v. Hoffman, 2016 IL App (4th) 160146-U sued for injunctive relief and damages.

The plaintiffs’ complaint alleged the basketball court violated written restrictive covenants that governed all homes in the neighborhood and that the defendants’ all-day (and much of the night) use of the court created a common law nuisance.

The trial court dismissed the plaintiffs’ claims and the plaintiffs appealed.

Affirming dismissal, the appeals court examines the key interpretative rules for residential restrictive covenants and the applicable standard of pleadings and proof for a nuisance claim.

In Illinois, restrictive covenants are construed and enforced according to their plain and unambiguous language;

The court’s goal in construing a restrictive covenant is to honor the parties’ intent at the time the covenant was made;

Covenants affecting real property are strictly construed so they don’t extend beyond their express language: all doubts as to whether a restriction applies is decided in favor of a landowner’s free use of property without restrictions

(¶¶ 56-57)

The court was tasked with deciding if a basketball court was a “building” – the property covenants barred any building (other than a single-family residence) within 10 feet of a property line.

Finding that the defendants’ basketball court was not a “building,” the Court looked to both Black’s and Webster’s dictionaries for guidance.  Each dictionary stated that walls, roof and an enclosed space were essential building components.  And since the basketball court had none of these elements, it didn’t meet the restrictions’ “building” definition.

A nuisance is a “substantial invasion of another’s interest in the use and enjoyment of his or her land.”  The invasion must be substantial (either intentional or negligent) and objectively (not subjectively) unreasonable.  To be actionable, the claimed nuisance must be physically offensive to the senses.  But “hypersensitive” individuals are not protected by nuisance law.

In addition, when a claim involves an activity deemed an accepted part of everyday life in a given community, it is especially hard to make out a nuisance case unless the plaintiff pleads unique facts that show how the challenged activity goes above and beyond what is commonplace.

Excessive noise can serve as the basis for a nuisance claim but it must be on the order of several dogs barking at all hours of the night.  A neighbor’s subjective annoyance at noise emanating from adjoining property isn’t extreme enough to merit nuisance relief under the law. (¶¶ 84-87)

In dismissing the plaintiffs’ nuisance claim, the Court first found that playing basketball didn’t qualify as “noxious or offensive” conduct under the covenants.  (The covenants outlawed noxious or offensive resident conduct.)  The Court also held that the plaintiffs failed to allege how the defendants’ use of the basketball court was any different from basketball playing by other neighborhood kids as the plaintiffs could document only a single instance of the defendants’ playing basketball after 10 p.m.

The Court noted that the plaintiffs failed to allege how the defendants’ use of the basketball court was any different from other kids’ court use as plaintiffs documented only a single instance where defendants’ played basketball after 10 p.m.

The Court then rejected the plaintiffs’ other covenant-based claim based on the “Allowable Structure” covenant that allowed property owners to erect single-family dwellings only on their lots.  Since a basketball court didn’t fit the dictionary definition of a structure (“a construction, production or piece of work”, i.e.), the Allowable Structure stricture didn’t apply.

Afterwords

This case illustrates how courts generally don’t like to meddle in private landowner disputes.  While the court does give some clues as to what is actionable nuisance under the law, the challenged conduct must go beyond everyday activity like playing basketball in a residential subdivision.

 

 

Evidence Rules Interplay – Authenticating Facebook Posts and YouTube Videos

Evidence Rules 901, 803 and 902 respectively govern authentication generally, the foundation rules for business records, and “self-authenticating” documents at trial.

The Fourth Circuit recently examined the interplay between these rules in the context of a Federal conspiracy trial.  In  United States v. Hassan, 742 F.3d 104 (4th Cir. Feb. 4, 2014), the Fourth Circuit affirmed a jury’s conviction of two defendants based in part on inflammatory, jihad-inspired Facebook posts and YouTube training videos attributed to them.

The Court first held that the threshold showing for authenticity under Rule 901 is low.  All that’s required is the offering party must make a prima facie showing that the evidence is what the party claims it is.  FRE 901(a).  In the context of business records, Rule 902(11) self-authenticates these records where they satisfy the strictures of Rule 803(6) based on a custodian’s certification.  Rule 803(6), in turn, requires the offering party to establish that (a) the records were made at or near the time (of the recorded activity) by – or from information transmitted by  – someone with knowledge, (b) that the records were “kept in the course of a regularly conducted activity or business”; and (c) that making the records was a regular practice of the business. FRE 803(6)(a)-(c).

Applying these rules, the Court held that certifications from Google’s and Facebook’s records custodians established the foundation for the Facebook “wall” posts and YouTube terror training videos.  In addition, the Court found that the prosecution sufficiently connected the two conspiracy defendants to the Facebook posts and YouTube videos by tracing them to internet protocol addresses that linked both defendants to the particular Facebook and YouTube accounts that generated the posts.

Notes: For a more detailed discussion of Hassan as well as an excellent resource on social media evidence developments, see the Federal Evidence Review (http://federalevidence.com/blog/2014/february/authenticating-facebook-and-google-records)

 

Course of Dealing Leads to Implied-In-Fact Contract Judgment in Construction Spat – IL First Dist.

While a signed agreement is almost always preferable to an oral one, the absence of a writing won’t always doom a breach of contract action.

Trapani v. Elliot Group, Inc., 2016 IL App (1st) 143734, examines what happens when parties don’t sign a contract but still act as if an agreement exists.

In a construction dispute, the First District affirmed a trial court’s finding that an implied-in-fact contract existed between the contractor plaintiff and the real estate developer defendant.  In upholding the $250K-plus judgment for the plaintiff, the Court highlights the nature and scope of implied contracts and discusses the agent-of-a-disclosed-principal rule.

The plaintiff submitted a draft contract that identified the defendant as “owner.”  The defendant, who wasn’t the owner (it was the developer), never signed the contract.

Despite the absence of a signed contract, the plaintiff performed the work contemplated by the draft agreement and was paid over $2M over a several-month period.  Plaintiff sued to recover for its remaining work after the developer refused to pay.  The developer denied responsibility for the plaintiff work: it claimed it merely acted as the owner’s agent and that plaintiff should have looked to the owner for payment.

The trial court entered judgment for the plaintiff.  It found that the plaintiff and developer, while lacking a signed written agreement, had an implied-in-fact contract.  The developer appealed.

Result: affirmed.

Reasons:

Whether an implied in fact contract (or “contract implied in fact”) exists depends on the surrounding facts, circumstances and expressions of the parties demonstrating an intent to be bound.

A contract implied in fact is a classic contract by conduct.  It arises where the court imposes a contractual duty on a party based on the party’s promissory expression that shows an intention to be bound;

The promissory expression can be inferred from the parties’ conduct and an implied in fact contract can be found even where there is no express contract between the parties;

An implied in law contract differs in that it is an equitable remedy based on the principle that no one should unjustly enrich himself at another’s expense;

Acceptance of an implied in fact contract can be shown by conduct of the parties and a course of dealing that demonstrates the parties’ intent to form a binding agreement.

(¶¶ 40-44)

The Court agreed with the trial court that the parties’ conduct supported a finding of an implied in fact contract.  The Court noted that throughout the construction project, the plaintiff communicated regularly with the defendant and provided lien waivers and payment certificates to the defendant.  The defendant also provided project specifications to the Plaintiff and approved multiple change orders over the course of plaintiff’s work on the site.  Significantly, the defendant never rejected plaintiff’s work or demanded that plaintiff stop working at any time during the project.

Next, the Court tackled the developer’s argument that it wasn’t liable to the plaintiff since the developer was acting as the agent of the property owner.  In Illinois, an agent who contracts with a third party generally is not liable so long as he discloses his principal’s identity.  Where the agent fails to identify his principal, it creates an “undisclosed principal” scenario which will make the agent personally liable if the contract is later breached. (¶ 60)

The reason for the undisclosed principal rule is reliance: the third party (here, the plaintiff) relies on the agent’s credit when entering the contract.  As a result, it would be unfair to immunize the agent and have the undisclosed principal shoulder the financial burden when the agent fails to reveal the principal.  The dearth of evidence showing a relationship between the developer (agent) and the owner (principal) led the Court to sustain the trial court’s finding that the developer was responsible for the outstanding amounts owed the plaintiff contractor.

Afterwords:

1/  An implied in fact contract is a valid, enforceable contract, despite a lack of express agreement.  Instead, the parties’ intention to be contractually liable can be shown through course of dealing between parties;

2/ The agent of a disclosed principal is generally immunized from liability.  However, where the agent fails to sufficiently disclose its principal’s identity, the agent remains liable if the plaintiff can show it relied on the agent’s credit and lacked notice of the agent’s principal’s identity.