Advance Release Opinions – April 27

Reviews of the Appellate Court’s advance release opinions about deed restrictions, divorce, foreclosure, and governmental immunity and procedure.

Deed Restrictions

Jepsen v. Camassar – Long, fact-specific opinion about modifying restrictions in a deed conveying beach rights to all of the property owners in a subdivision. Trial court ruled that modification was valid. Appellate Court reversed and remanded with direction to render judgment declaring modification invalid, finding that: (1) association failed to give notice of the vote on the modification to all who were entitled to notice; and (2) the modifications were not approved by a majority of property owners as the deed required.

Divorce

Steller v. Steller – In modifying alimony, trial court properly determined that defendant’s earning capacity could be less than his current income because earning capacity is what defendant can be expected to earn in the future, not what he earns now. But, Appellate Court reversed because the evidence did not support the trial court’s determination of the amount of defendant’s earning capacity.

Foreclosure

Wells Fargo Bank, N.A. v. Melahn – Per curiam opinion. Trial court struck borrower’s counterclaims and special defenses and then granted bank’s motion for judgment on the counterclaims. Appellate Court dismissed the appeal as to the special defenses for lack of a final judgment, and affirmed the striking of the counterclaims, finding that trial court did not abuse its discretion in concluding that they were either legally insufficient or did not meet the transaction test. Appellate Court also affirmed the judgment on the counterclaim because borrower’s attempt to replead merely added conclusory statements to some of the counterclaims, and those additions did not correct the legal insufficiency.

Governmental Immunity and Procedure

Carter v. Watson – Governmental immunity barred inmate’s claims for money damages against Attorney General and four state employees, sued in their official capacities for failing to timely restore inmate to his proper status after an overturned drug test. Inmate’s claim for declaratory relief arising from the same incident was properly dismissed as moot since it did not fall within the mootness exception for matters capable of repetition, yet evading review.