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Memo Legal Situation

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MEMORANDUM

TO: Tracy Belford, Legal Supervisor

FROM: Team C

DATE: November 10, 2008

SUBJECT: Legal Situation – Al Jones

Dear Tracy,

Team C will explain the court level which Mr. Al Jones’ case can be resolved, the process or steps in filing a civil suit are addressed. The proposed resolution of the civil aspects compared to the criminal acts resolution. This memorandum will address court jurisdiction over the case. The team will also analyze the probable success in court and any alternative means of resolving the matter.

Court Levels
The alleged claims involve criminal and civil acts against the city and a Swedish property owner. In the United States fraud is considered both a civil and criminal act. This claim involves the Civil, Criminal Court and the State Court system. With the property owner being of Swedish citizenship the U.S. District court could be able to get involved. The property owner could opt to sue Mr. Al Jones for trespassing and possible property damage. Trespassing is considered a civil and criminal act, and the civil and criminal courts could get involved. As a result of trespassing, possible charges of damage to the property could be pending depending on the severity of damage done. Property damage in most cases would be considered a civil act and would involve the civil court. If the cases reach a trial and Mr. Jones is not happy with the outcome, and is able to produce evidence, which will benefit the case, the U.S. Court of Appeals may agree to hear the evidence Mr. Jones has. If the U.S. Court of Appeals does not resolve the issue, the U.S. Supreme Court can hear the case. Mr. Al Jones has three alleged claims against him with the possibility of being sued by two different parties. The city could sue for fraud against a municipality and the homeowner could sue for property damage and trespassing.

Court Jurisdiction
Subject matter jurisdiction is the courts’ authority to decide the situation in controversy such as a contracts issue or civil rights issue. State courts have general jurisdiction meaning they can hear any controversy except those prohibited by state law and those allocated to federal courts. Federal courts can only hear cases that fall within the scope of the constitution.

A jurisdiction may be broken down into three different components. The first component is whether or not the jurisdiction is over a person. The second component is whether there is jurisdiction over the subject matter. The third component is whether there is jurisdiction to render the particular judgment sought. Any court possesses jurisdiction over matters only to the extent granted to it by the constitution.

Territorial jurisdiction is the court’s power to bind the parties to the action. This law determines the scope of federal and state court power. The Due Process Clause of the Constitution’s Fourteenth Amendment determines the state court territorial jurisdiction and the Due Process Clause of the Constitution’s Fifth Amendment determines the federal court territorial jurisdiction.

Other forms of jurisdiction include appellate jurisdiction (the power of one court to correct the errors of another, lower court), concurrent jurisdiction (the notion that two courts might share the power to hear cases of the same type, arising in the same place), and diversity jurisdiction (the power of Federal courts to hear cases in which the parties are from different states).

Federal courts have jurisdiction over matters involving controversies between the states, questions of the federal law, and controversies between parties from different states in which the amount involved exceeds $50,000. In this case since the plaintiff is of Swedish citizenship the federal courts can be involved due to “diversity of citizenship cases occurring between a citizen of a state and a citizen or subject of a foreign county.” (Cheeseman, 2007) Another factor to consider for this case to be in federal court is “the controversy must exceed $75,000.” (Cheeseman, 2007) The local courts are most likely to hold the civil suit situation against Mr. Jones. Mr. Jones should anticipate the local courts to hold jurisdiction as this case is focused around local property, local business, and local residents.

Steps required for Court
Complete paperwork: 1. Defendant name, business name and address 2. Amount of plaintiff’s claim 3. Basis of claim 4. Filing fees and sheriff fees 5. Copy of civil warrant sent by mail to defendant 10 days before court date. 6. Certificate of mailing delivered to court clerk or judge before trial date.

Service of Process: use sheriff or private process server to deliver papers to defendant

Return of Warrant: court date, on civil warrants failure to appear could result in a default judgment against the defendant. Before judge decides the case, defendant has the right to remove the case to general district court.

Trial – Both sides are heard and witness testimony is allowed. In small claims court all parties shall represent themselves, attorney may serve only as an owner, general partner, officer of employee but not as a representative of a corporate or partnership.

Judgment – Judge will decide for the plaintiff or the defendant.

Appeal –As long as the amount in dispute is over $50.00 an appeal may be filed, this must be done within 10 days of the judgment. The appeal will be tried in circuit court in a formal manner strictly following all of the rules of evidence and procedure, where lawyers usually represent the parties.

Proposed Resolution – Civil
There are several scenarios, which could happen with this civilly. This depends on several factors. The first factor being; was there a survey properly completed by a title agency, if so this could possibly cease the lawsuit and become a matter for the title company. Secondly, did the city approve the development and the exact location of the building lots prior to construction? Third, has all permits and documents been properly secured and in good order? Mr. Jones has a very good case against the city if any of these scenarios apply.

Proposed Resolution - Criminal
Unless a fraudulent act has been committed there should be no criminal action taken, this will be a civil matter. Things to consider would be, knowingly build where the easement was located or falsifying documents.

Probable Success
More than likely a court case will cost the defendant not only money but also his status in the community of developers. In this case not only could Mr. Jones be sued in civil court but also this can go up the levels to a state court due to the city utilities being involved. Federal court due to the landowner (plaintiff) being a Swedish citizen. At the state and federal levels both sides will be heard and a jury can decide the case. Regardless, the utility is already installed; so worse case is a fine and probation. If fraud was involved possible jail time could occur.

Alternative Resolutions
However, there exists an alternate means of resolving the civil matter with using the ADR (Alternate Dispute Resolution). Arbitration could work better and may be a more convenient way for all parties requiring less time to settle the problem and have less formal rules in an arbitrary hearing than in a court. ADR or Alternate Dispute Resolution has advantages and disadvantages with the advantages of ADR include the ability to slow litigation costs and time constraints, which would allow the project to continue. This can save Mr. Jones thousands of dollars and bring a quick resolution to issues saving time with the proceedings. ADR can keep the problem silent for Mr. Jones, the business and his reputation as well as bad publicity for his business. ADR encourages compromise and this can be an excellent way of settling the dispute for Mr. Jones. A mediator will be the best solution to resolve the easement for a city utility line. By resolving the mix up on the easement a settlement can save the client time and money. First, easements can run with the land therefore, if the easement was recorded with the city, whether the easement was known or not, this may be binding in court. Second, if the easement does not run with the land the city can always use its eminent domain power to take the land but would have to pay fair market value for the loss. Third, the city has the power to make reasonable conditions for issuance of a building permit to proceed with the building project.

Conclusion
After a careful review of the factors involved in this case: • The probability of winning or losing • The amount of money to be won or lost • Lawyers’ fees and other costs of litigation • Loss of time by managers and other personnel • The long-term effects on the relationship and reputation of the parties • The amount of prejudgment interest provided by law • The aggravation and psychological costs associated with a lawsuit • The unpredictability of the legal system and the possibility of error • Other factors peculiar to the parties and lawsuit (Cheeseman, 2008)

Team C’s opinion is first suggestion is ADR. Then to consider taking the case the firm has a history with Mr. Jones and this type of problem can be solved in the legal process. Overall, this case could go through 3 levels of court action. Mr. Jones will need to have evidence of whom he believes is responsible. He will need to show proof he is not responsible. Research or production of documents will be needed, title searches, and building plans for past subdivisions, with the utility line sign off forms, which should be on file with the city. If the files are not found, a meeting with the city to discuss why these are not on file will be important.

References

Cheeseman, H.R. (2007) Legal Environment of Business: The Legal and Global Environment.[University of Phoenix Custom Edition e-text] Upper Saddle River, NJ: Prentice Hall. Retrieved November 10, 2008 from University of Phoenix, Resource, BUS 415 –Business Law…...

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