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11th Circuit

FIREARMS, ROBBERY

U.S. v. Clarke, May-11-2016

Per curiam, the circuit finds that the lower court improperly convicted defendant of being a felon in possession of a firearm. His past conviction should not have been treated as a felony for sentencing purposes since the adjudication was withheld under Florida law. Although circuit precedent is contrary, it has become clear that the circuit erred in finding that one whose sentence is withheld may be held to have been "convicted" later. Reversed.

1st Circuit

PROPERTY, CIVIL PROCEDURE

College Hill Properties v. City of Worcester, May-11-2016

J. Lynch finds that the lower court properly dismissed plaintiff property owners' and lessors' claim that defendant has selectively enforced the Worcester Zoning Ordinance and the state Lodging House Act and thereby caused plaintiffs to reduce the number of tenants per unit, as well as face higher property taxes. Plaintiffs waited too long to bring their claims, which nonetheless remain speculative. Affirmed.

1st Circuit



Quilez-Velar v. Ox Bodies, May-11-2016

[Corrected.]

1st Circuit



Fanning v. FTC, May-11-2016

[Corrected.]

1st Circuit

IMMIGRATION, FAMILY LAW

Tillery v. Lynch, May-11-2016

J. Howard finds that the Board of Immigration Appeals improperly declined to dismiss petitioner's removal proceedings after she overstayed a visa. She is a citizen of St. Vincent and the Grenadines who seeks relief under the Violence Against Women Act. The immigration judge expressed doubts about whether the qualifying marriage was real or fraudulent, but the record is too sparse to judge this. This does not mean the board must turn a blind eye to this issue on remand, so petitioner's claim may still fail. Reversed.

1st Circuit

BUSINESS PRACTICES, PREEMPTION

Massachusetts Delivery Assoc. v. Healey, May-11-2016

J. Lynch finds that the lower court properly found that the Federal Aviation Administration Authorization Act preempts Massachusetts from applying other regulations to the same-day delivery companies that constitute the Massachusetts Delivery Association, including one called Xpressman. The Act's preemption power is expansive, as recent cases involving FedEx drivers' classification as independent contractors. Permitting state law to trump here would deprive Xpressman of its choice in providing for delivery services. Affirmed.

2nd Circuit

SECURITIES, FRAUD, CONSPIRACY

Ritchie Capital Management v. General Electric Capital Corp., May-11-2016

Per curiam, the circuit finds that the district court properly dismissed plaintiffs' complaint for lack of standing. Plaintiffs brought state claims for civil conspiracy in connection with the Ponzi scheme of Thomas Petters in the early 2000s, alleging defendant uncovered and then joined the scheme; plaintiffs said they invested based on defendant's involvement, then lost money. However, because plaintiffs suffered a generalized harm common to investors in the scheme -- and action on that front had been pursued by Petters' bankruptcy estate -- they lacked standing to bring the claim. Affirmed.

6th Circuit

CRUEL AND UNUSUAL PUNISHMENT, PRISONERS RIGHTS

Koprowski v. Baker, May-11-2016

J. Cole finds that the lower court improperly dismissed a prisoners' claim that prison staff members were deliberately indifferent to his medical needs after he fell off a ladder while working at the prison. The Inmate Accident Compensation Act does not make workers' compensation plaintiff's only remedy for his Eighth Amendment claims simply because they occurred in an employment-related context. Reversed.

6th Circuit

JUVENILE LAW, MURDER, SENTENCING

Hill v. Snyder, May-11-2016

J. Stranch finds that the lower court's order requiring the state to immediately comply with the Supreme Court's ruling in Miller v. Alabama, forbidding life sentences without parole for juveniles, because of intervening legal changes. The Supreme Court's recent ruling in Montgomery v. Louisiana adopts a new rules that applies to juveniles whose convictions were final when Miller was decided, and therefore may have a significant effect on plaintiffs' appeals. In Montgomery, the court said that a state may allow juvenile homicide offenders to be considered for parole rather than resentencing them, which gives Miller a retroactive effect without burdening the states with the task of resentencing thousands of offenders. Reversed.

8th Circuit

CONSTITUTION, BANKING/LENDING

Bennie v. Munn, May-11-2016

J. Riley finds that the lower court properly dismissed plaintiff's First Amendment retaliation claim. He is a financial advisor who was involved in Tea Party political activities. Nebraska's Lincoln Journal Star ran an article that quoted him calling President Obama "a communist," "dishonest," and "an evil man." He also ran a television commercial in which he rode a horse and said he would give customers who did business with him "a hundred dollars toward the purchase of a firearm." Meanwhile, the Nebraska Department of Banking and Finance was investigating him for other reasons and decided to question him about his political activities as well. Defendants were officials with this governmental department. Even though his speech was protected, the regulators' activity was not so severe as to affect his business and would not have deterred a person of "ordinary firmness" from continuing his speech. The court acknowledges that these actions were unconstitutional, even if they are not legally actionable. Affirmed.

9th Circuit

WORKERS COMPENSATION, EMPLOYMENT, LABOR

SSA Terminals and Homefront Insurance Co. v. Carrion, May-11-2016

J. McKeown finds the Benefits Review Board correctly determined that a retired longshoreman filed a timely workers' compensation claim but improperly found that his injury was temporary. The longshoreman did not become aware of the full extent of his knee injury until he received a medical report several months after filing his claim in 2008, making the claim timely. The board found that because the longshoreman's injury could be improved by surgery that his injury was not permanent, but that is not the proper standard. The Circuit has established that an injury is permanent when there is no possibility or likelihood of improvement through normal and natural healing. Reversed in part.

9th Circuit

IMMIGRATION, JURISDICTION

Monroy v. Lynch, May-11-2016

[Order.] Per curiam, the circuit finds that it lacks jurisdiction to rule on a Salvadoran immigrant's challenge to a Board of Immigration Appeals decision denying his application for special rule cancellation of a deportation order. The courts can review constitutional claims and questions of law raised in a petition for review of denial of cancellation under the Nicaraguan Adjustment and Central American Relief Act. However, the immigrant raises no such claims and instead says the board improperly found unfavorable factors, such as his criminal history, outweighed favorable factors when it denied his petition. The Circuit lacks jurisdiction to review the board's discretionary decision-making in this matter.

9th Circuit

ATTORNEY FEES, SETTLEMENTS, ANTITRUST

Stetson v. West Publishing Corp., May-11-2016

J. Smith finds the district court failed to fully explain why it slashed a $1.9 million request for attorney fees by 70 percent in a case involving a $9.5 million settlement over an alleged conspiracy to monopolize bar exam review courses. The district court did not specify whether it used historic or current rates to set the market rate at $450 per hour, nor did it explain why it reduced billable hours by 242.1. The district court never considered whether the attorneys were entitled to a risk multiplier. A decision to reduce cost reimbursement by $30,000 was based on "clearly erroneous findings of fact" because the lawyers explained why hired experts were crucial and indispensable to the case. Because the Circuit has reversed the district court judge's denials and reductions of attorneys' fees three times in a related matter, the case will be re-assigned to a different judge on remand. Reversed.

Arkansas Court Of Appeals

ATTORNEY FEES

Wingate-Mickles v. Harris, May-11-2016

J. Gladwin finds that the lower court improperly ordered appellant, as executrix of the estate, to pay attorney's fees to a previous attorney for the estate who had filed a successful will contest. The order should not have been made without the due process of a hearing. Reversed.

Arkansas Court Of Appeals

FAMILY LAW

Ferguson v. Arkansas Department of Human Services, May-11-2016

J. Vaught finds that the parents' parental rights to their three adopted children were properly terminated. The children were removed from the home after reports that the mother had beaten the 3-year-old and 4-year-old children with a vacuum-cleaner attachment, and that both boys had bruising and black eyes, among other reported abuse findings. The finding that termination is in the children's best interest is not clearly erroneous. Affirmed.

Arkansas Court Of Appeals

MURDER, JUVENILE LAW

Brown v. Arkansas, May-11-2016

J. Abramson finds that the lower court properly declined to transfer the murder case to the juvenile division of circuit court. Defendant was charged with one count of capital murder and aggravated robbery, and two counts of committing a terroristic act stemming from a drug-related killing when he was 17 years and 9 months old. Defendant did not establish clear and convincing evidence to support reversal and, therefore, the motion to transfer was correctly denied. Affirmed.

Arkansas Court Of Appeals

MURDER

Sallee v. Arkansas, May-11-2016

J. Hixson finds that the lower court properly convicted defendant for first-degree murder since his arguments on appeal are not preserved for review. Affirmed.

Arkansas Court Of Appeals

DRUG OFFENDER

Jordan v. Arkansas, May-11-2016

J. Virden finds that the lower court properly convicted the inmate on drug charges, including possession of methamphetamine with intent to distribute, possession of drug paraphernalia, and possession of marijuana. There is sufficient evidence to support the jury's conviction of defendant on all charges. Affirmed.

Arkansas Court Of Appeals

WILLS / PROBATE

Patton v. Fulmer, May-11-2016

J. Hixson finds that the lower court improperly ruled on the construction of decedent's will, a bequest to his widow, and its award of half of the appreciation of the assets comprising the probate estate. The evidentiary issues related to the exclusion of attorney testimony were correctly decided. Affirmed in part.

Arkansas Court Of Appeals

CIVIL PROCEDURE

Worsham v. Day, May-11-2016

J. Brown finds that the appeal of an order granting appellees' motion for judgment notwithstanding the verdict must be remanded to settle and supplement the record.

Arkansas Court Of Appeals

FAMILY LAW

Wilson v. Wilson, May-11-2016

J. Kinard finds that the lower court improperly entered a divorce decree that found that certain property was marital property, and in dividing the parties' property inequitably. Reversed.

Arkansas Court Of Appeals

CRIMINAL PROCEDURE

Williams v. Arkansas, May-11-2016

J. Hoofman finds that a supplemental addendum must be ordered to correct deficiencies in defendant's brief. Defendant is appealing his conviction for battery, for which he was sentenced to 780 months' imprisonment.

Arkansas Court Of Appeals

NEGLIGENCE

Belcher v. Denton, May-11-2016

J. Brown finds that the lower court properly entered a judgment in the negligence action that found the deceased was 49.9 percent at fault in causing his own death, and reducing the $7,600 judgment by that percentage. There is no cause for reversal to the estate's various arguments of trial errors. The case stems from a fatal auto-pedestrian collision. Affirmed.

Arkansas Court Of Appeals

SEX OFFENDER

Lewis v. Arkansas, May-11-2016

J. Gruber finds that the lower court properly convicted defendant of second-degree sexual assault of his daughter. The verdict is supported by substantial evidence, including victim testimony identifying defendant as the person who sexually assaulted her. Accordingly, defendant was correctly sentenced to 240 months' imprisonment. Affirmed.

California Courts Of Appeal

SEX OFFENDER, EVIDENCE, SENTENCING

California v. Mariscal, May-11-2016

J. Ramirez finds that the trial court properly convicted defendant for raping and impregnating his daughter and found true that he inflicted great bodily injury on her since she suffered extreme pain while giving birth to the resulting child. Defendant argues that there was not sufficient evidence to support the determination that he caused great bodily harm. However, defendant was placed on notice of the great bodily harm charges against him before his daughter testified that her labor was extremely long and painful. Additionally, defendant argues that his 25 year sentence is excessive for his crime. Defendant should have been given the indeterminate sentence of 15 years to life since an amendment to the relevant statute had been put in place at the time he was sentenced. Therefore, his sentence needs to be modified to reflect the change. Affirmed in part.

California Courts Of Appeal

COMMITMENT, COMPETENCE, EXPERTS

California v. Lameed, May-11-2016

J. Marquez finds that the trial court properly suspended the domestic violence proceedings against defendant, declared him incompetent, committed him to the Department of State of Hospitals, and ordered him to be treated with antipsychotic medication. Defendant argues that it was erroneous to order him to take the antipsychotic medicine without his consent. However, an expert evaluation determined that defendant is not able to recognize his mental illness which makes him a danger to himself since he will not take the needed medication. Furthermore, the expert provided evidence to support the determination including showing that, "his lack of insight into his actions and denial of past events are evidence of the adverse effects of his current illness." Affirmed.

Court Of Appeals For The Armed Forces

SENTENCING

U.S. v. Gay, May-11-2016

J. Erdmann finds that the lower court properly granted sentence appropriateness relief from post-trial confinement conditions. The relief was based on a legal deficiency in the post-trial process. Affirmed.

Court Of Federal Claims

CIVIL PROCEDURE, PATENT

Hitkansut v. U.S., May-11-2016

J. Lettow finds that, in the company's patent infringement case, its motion to prevent the government from relying documents not produced during discovery should be denied. The company argues the government infringed upon its patent to improve the "mechanical and physical properties of manufactured metal parts." The company argues that the government will reverse its position after refusing to supply the company with data regarding its experiments, and will argue that if the company does not have that data, it cannot prove the government is infringing. The record shows, however, that this court already denied plaintiff's motion to compel that data during discovery, and its motion now is an attempt to re-litigate that decision.

Delaware Court of Chancery

CORPORATIONS

In re Appraisal of Dell v. , May-11-2016

Vice Chancellor Laster denies plaintiffs' appraisal rights for their Dell Inc. shares because the holder of the shares voted in favor of the merger. Plaintiffs are mutual funds sponsored by T. Rowe Price & Associates who was responsible for directing the voting of the Dell Inc. shares. But T. Rowe Price was not the legal record holder of plaintiffs' shares. Cede & Co. was the record holder. But Cede & Co. was directed to vote the shares held by T. Rowe Price through State Street Bank & Trust Company, Institutional Shareholder Services Inc., and the Depository Trust Company. And because T. Rowe Prices's voting process was defaulted to voting in favor of management-supported mergers, it directed the companies to sell plaintiffs' shares. As such, plaintiffs are entitled to the merger consideration without any award of interest.

Delaware Court of Chancery

CONTRACT

Employees Retirement System of St. Louis v. TC Pipelines GP, May-11-2016

Vice Chancellor Glasscock dismisses plaintiff's action challenging a conflicted transaction in which the parent of TC Pipelines GP sold TC Pipelines LP a pipeline asset. Plaintiff maintains that the transaction, or dropdown as it is also known, was unfair to TC Pipelines LP and approved in bad faith. But defendants counter that the transaction was approved by a "Conflicts Committee," which was the only contractual duty that the general partner had under the LP agreement. The court agrees that the approval of the "Conflicts Committee" precluded judicial scrutiny.

Federal Circuit

AGENCY, EMPLOYMENT

Lal v. Merit Systems Protection Board, May-11-2016

J. Hughes finds that the board improperly upheld plaintiff's termination from her job as a consultant at the Centers for Disease Control. Although plaintiff was appointed "without regard to the civil-service laws," her termination is still subject to the civil service due process amendments of 1990. The agency could not terminate her employment without providing notice of termination or a right to respond. Personnel hired into the excepted service are still "employees" and therefore qualify for due process employee rights. Reversed.

Florida Courts Of Appeal

REAL ESTATE

Goodman v. Rose Realty West, May-11-2016

J. Gross finds that the circuit court wrongly found for a broker in a fraudulent nondisclosure action. Defects in the home sold were not disclosed upon sale, and affected the value of the property. The circuit court granted the broker's motion for judgment without explanation, although the broker may have had substantial liability in the complaint. Reversed.

Florida Courts Of Appeal

BANKING/LENDING, PROPERTY

Nationstar Mortgage v. Craig, May-11-2016

J. Emas finds that the trial court improperly ruled in favor of the homeowners in a foreclosure suit. The bank had standing to bring the lawsuit. Reversed.

Florida Courts Of Appeal

DRUG OFFENDER

Santana v. State, May-11-2016

J. Forst finds that the lower court wrongly convicted and sentenced defendant for trafficking ecstasy after he attempted to sell the drug to an undercover officer. The state failed to properly lay the foundation for audio recordings of conversations between defendant and an informant. The informant taped calls between himself and defendant without an officer present, and therefore their authenticity could not be proved. Reversed.

Florida Courts Of Appeal

FAMILY LAW

Steinman v. Steinman, May-11-2016

Per curiam, the court of appeals finds that the lower court wrongly found a mother in contempt of a child support order for making decisions regarding her children's religious education without consulting their father. Both the mother and father are Jewish, and the mother exposed their children to orthodox religious beliefs in afterschool care against the father's wishes. Since there is no evidence that the children were harmed by the exposure, the contempt ruling was unwarranted. Reversed.

Florida Courts Of Appeal

HABEAS

Holland v. State, May-11-2016

Per curiam, the court of appeals finds that the lower court properly denied defendant's petition for writ of habeas corpus regarding post-conviction relief. Defendant had filed an untimely request. Affirmed.

Florida Courts Of Appeal

THEFT

Walker v. State, May-11-2016

J. Levine finds that the lower court wrongly convicted defendant of third-degree grand theft. Defendant stole a laptop, but the value of the laptop was incorrectly determined to be its purchase price, with no other evidence, such as the age of the laptop, introduced at trial. Defendant should have been convicted of second-degree petit theft based on the age and actual value of the computer. Reversed.

Florida Courts Of Appeal

ATTORNEY FEES, DISCOVERY, SANCTIONS

Bellant v. Bellant, May-11-2016

J. LaRose finds that the lower court properly awarded the former husband attorney's fees incurred in opposing the former wife's motion to compel discovery, but should not have included fees because of bad faith conduct. The court found that the husband had produced all documents requested, but there is no evidence that the motion to compel was filed in bad faith. Affirmed in part.

Florida Courts Of Appeal

BANKING/LENDING, PROPERTY

Arnoux v. Bank of New York, May-11-2016

J. Scales finds that the trial court properly dismissed the homeowner's quiet title action. The statute of limitations does not bar the bank from re-filing a foreclosure lawsuit if the homeowner defaulted for a second time. Affirmed.

Florida Courts Of Appeal

BANKING/LENDING

Reano v. US Bank NA, May-11-2016

J. Damoorgian finds that the lower court wrongly foreclosed on a pair of homeowners. The lender bank failed to present competent and substantial evidence of default, and the bank failed to accelerate the mortgage note before the homeowners made a late payment. Reversed.

Florida Courts Of Appeal

MURDER, INEFFECTIVE ASSISTANCE

Sharpe v. State, May-11-2016

J. Warner finds that the lower court correctly convicted defendant of first degree premeditated murder. Defendant argued that the court erred when it gave a forcible felony exception to the self defense instruction where no independent forcible felony was charged. This was, however, not a fundamental error, as defendant's self defense claim was "extremely weak" and contrary to a medical examiner's testimony, which didn't support self defense. Defendant didn't suffer from ineffective assistance as claimed, and would not have received a different outcome even if his assertion were true. Affirmed.

Florida Courts Of Appeal

CONTEMPT, FAMILY LAW

D.H., the father v. T.N.L., the mother, May-11-2016

J. Taylor finds that the lower court wrongly found a father to be in contempt of court. The father violated his court-ordered parenting plan when he wouldn't allow the mother to pick up their child for timesharing after she travelled to Kentucky to do so. He was ordered to reimburse her travel and attorney's expenses, but failed pay in a timely manner. The father was wrongly issued a contempt order without determining if he in fact had the ability to pay the reimbursement fee. Reversed in part.

Florida Courts Of Appeal

KIDNAPPING, WITNESS

Cati v. State, May-11-2016

J. Salario finds that the lower court improperly denied defendant's post-conviction motion seeking a new trial based on newly discovered evidence. Defendant is entitled to a hearing on new testimony by a neighbor indicating that defendant did not kidnap his wife, and she appeared to go with him voluntarily. The trial court also must evaluate whether the witness's alleged immigration problems are a reasonable excuse for the delay in discovering his evidence. Reversed.

Florida Courts Of Appeal

GOVERNMENT

City of Miami v. Village of Key Biscayne, May-11-2016

J. Scales finds that the trial court properly proceeded with an injunction lawsuit between the village and the county without giving notice to the city. The city cannot join the lawsuit unless the village noticed the city.

Florida Courts Of Appeal

PROPERTY, ATTORNEY FEES

Hibbs Grove Plantation Homeowners Association v. Aviv, May-11-2016

J. Damoorgian finds that the lower court wrongly granted a pair of homeowners judgment and attorney's fees in a lawsuit involving the homeowners and their association. The association requested that the homeowners have their residence power washed to remove mold and mildew stains. They complied, but the stains remained, the association further pressured the owners to remediate the problem, and the owners filed suit. Although the homeowners power washed the premises as requested, they nonetheless violated their residency declaration by not entirely removing the offending stains. Reversed.

Florida Courts Of Appeal

PROSTITUTION

State v. Titov, May-11-2016

Per curiam, the court of appeals finds that the county court wrongly imposed a mandatory $5,000 fine on defendant for solicitation of prostitution. The fine is unconstitutionally excessive. Reversed.

Florida Courts Of Appeal

FAMILY LAW

B.B.S., a minor child v. Rodriguez-Murguia, May-11-2016

J. Conner finds that the trial court wrongly dismissed three children's cause of action to determine maternity. They filed a petition to determine parental responsibility, time sharing and child support, alleging that the person listed on their birth certificates is "a fictitious or non-existent person." The biological mother admitted to the allegations and agreed to all relief requested, but the trial court on its own motion dismissed the case. It should have allowed the children to establish maternity by way of a declaratory action under Florida Statute Chapter 86. Reversed.

Florida Courts Of Appeal

PROPERTY, INSURANCE

Case v. Tower Hill Prime Insurance Company, May-11-2016

J. Salario finds that the lower court improperly found for the insurer in a dispute over sinkhole coverage for damage to their home. Numerous experts inspected the home and made varying estimates for the cost of work to stabilize the property. Summary judgment was improperly granted because there is a disputed issue of fact regarding the proper method of subsurface repair. Reversed.

Florida Courts Of Appeal

RESISTING ARREST, BATTERY

Jackson v. State, May-11-2016

J. Levine finds that the lower court wrongly convicted defendant of resisting arrest without violence. Defendant attacked his victim, a resident and maintenance worker in an apartment complex, in an apartment where the victim was working, then returned to his own apartment. Defendant then refused to leave his home after police, without a warrant or exigent circumstances, unlawfully ordered him to come outside and submit to custody. Defendant was, however, properly convicted of battery on the victim. Affirmed in part.

Florida Courts Of Appeal

MURDER, SENTENCING

Nelson v. State, May-11-2016

Per curiam, the court of appeals finds that the lower court properly gave defendant a mandatory minimum 25-year sentence after his convictions for second degree murder with a firearm and attempted first degree murder with a firearm. Defendant argued that his indictment didn't charge "death or great bodily harm," and therefore the mandatory term was illegal. The allegation that defendant shot his victim, however, was sufficient to prove "great bodily harm." Affirmed.

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