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Edit Delete 10th Circuit

SEARCH, FIREARMS

U.S. v. Gilmore, Jan-16-2015

J. Matheson finds that the lower court properly denied suppression of evidence uncovered when a police officer did a pat-down of a disoriented man in a parking lot and found an illegal firearm. Because of his level of intoxication and the cold weather, the man was a danger to himself, and police may do a pat-down of any person they are about to take into protective custody. Affirmed.

Edit Delete 10th Circuit

SECURITIES, FRAUD

Banker v. Gold Resource Corp., Jan-16-2015

J. Seymour finds that the lower court properly dismissed a lawsuit against Gold Resource Corp. for securities fraud. Although the corporation sent press releases to investors that failed to mention the production problems it was facing in its gold mines, there is no proof that this was committed with malice. It is reasonable to assume management wanted to conduct further investigation before disclosing issues to the public. Affirmed.

Edit Delete 10th Circuit

DRUG OFFENDER, JURY, WITNESS

U.S. v. Vann, Jan-16-2015

J. Tymkovich finds that the lower court properly convicted a man of illegally transporting drugs on an Amtrak train. One juror was struck not because he was African American but because he did not fill out the juror questionnaire. An expert witness was qualified to testify based on his experience as a Drug Enforcement Administration agent. In addition, the court properly apprised the man of the dangers of proceeding without counsel, which he decided to do anyway. Affirmed.

Edit Delete 11th Circuit

HOUSING, CONSTITUTION, TAX

Montgomery County Commission v. Federal Housing Finance Agency, Jan-16-2015

[Consolidated.] J. Moreno finds that the lower court properly found defendant federal housing entities exempt from paying taxes on their real estate transfers. Each entity's congressional charter exempts it from all taxation. Although there is an exception for real estate taxes, these do not apply to transfer taxes, even those that are intrastate. Fannie Mae and Freddie Mac are privately held corporations and not federal instruments, but Congress was permitted to grant them statutory exemptions identical to federal governmental immunity. The standard is not whether Congress had a compelling interest for its choice, but only whether it had a rational basis. Affirmed.

Edit Delete California Courts Of Appeal

JUVENILE LAW, IMMIGRATION

People v. Israel O., Jan-16-2015

J. Bruiniers finds that a trial court incorrectly denied defendant's request to find that he qualified for special immigrant juvenile status after being made a ward of the court. While the trial court believed the law required defendant to have been abused, neglected or abandoned by both parents in order to qualify for SIJ status, the law expressly states "1 or both." Thus, because defendant's father abandoned him he qualifies as a SIJ even though his mother is still in his life.

Edit Delete California Courts Of Appeal

SEARCH

Guillory v. Hill, Jan-16-2015

J. Aronson finds that a trial court incorrectly found defendant did not violate plaintiffs' civil rights by keeping them detained for questioning for 14 hours. While the court believed that defendant's questioning amounted to a search of the premises and was therefore justified, as did the finding of two inoperable slot machines and a small amount of marijuana in one person's purse, a reasonable jury could have just as easily concluded that officers had ended their search even before defendant's questioning began and plaintiff were illegally detained. Reversed in part.

Edit Delete California Courts Of Appeal

DRUG OFFENDER, PLEA

People v. Alexander, Jan-16-2015

J. Kriegler finds that a trial court correctly convicted defendant of drug possession and sentenced him to 16 months in county jail. While defendant argued the sentence was illegal because it exceeds the plea agreement, for reasons only defendant knows he rejected portions of the negotiated deal by refusing to allow a drug court to sentence him and refusing to choose between two sentences offered to him as a result. Defendant's lack of cooperation nullified the plea agreement. Affirmed.

Edit Delete California Courts Of Appeal

ADMINISTRATIVE LAW, LICENSING

Nick v. Dept. of Alcoholic Beverage Control, Jan-16-2015

J. Aronson finds that respondent correctly granted an alcoholic beverage license for a 7-11 to sell wine and beer. While petitioners claimed that respondent gave its de facto authority to the city by agreeing with the city's assessment of public convenience, state law only requires respondent to make its own assessment of public convenience if a city declines to do so within a 90-day period. And while an appeals board did find that the 7-11 did not identify an ownership interest on its application, petitioner never raised that issue in the original proceedings. Affirmed.

Edit Delete California Courts Of Appeal

DRUG OFFENDER, JURY

People v. Orlosky, Jan-16-2015

J. Haller finds that a trial court incorrectly convicted defendant of marijuana possession and cultivation. While the trial court declined to instruct the jury on defendant's defense theory of collective cultivation under the medical marijuana law because it believed defendant was not actually part of an official collective, it had an obligation to instruct the jury because of defendant's informal cultivation agreement with his roommate since they both were medical marijuana patients. Reversed.

Edit Delete California Courts Of Appeal

PUBLIC RECORD

Fredericks v. Superior Court of San Diego County, Jan-16-2015

J. Huffman finds that a trial court incorrectly denied plaintiff's public records request, for past police records of calls for assistance and citizen complaints. While the trial court believed the law only requires disclosure of current or very recent records and that plaintiff's request for 60 days' of records was excessive, the most recent version of the public records law does not include time limitations. Instead, the trial court must focus on balancing the interests of disclosure against the burden and cost of producing the records.

Edit Delete California Courts Of Appeal

ENFORCEMENT OF JUDGMENTS

Kilker v. Stillman, Jan-16-2015

J. Fybel finds that a trial court incorrectly denied defendant's request to block a levy plaintiffs wanted to place on defendant's bank account to satisfy a judgment. Although the trial court agreed that the funds in the account came from Social Security, it denied the request because the funds had not been directly deposited by the government. But regardless of how the funds came to defendant's account, Social Security payments are protected from levy by federal law and the trial court should have granted defendant's request. Reversed.

Edit Delete California Courts Of Appeal

GOVERNMENT

City of Emeryville v. Cohen, Jan-16-2015

J. Duarte finds that a trial court correctly allowed plaintiffs to reenter into agreements made before the Legislature dissolved all redevelopment agencies statewide. Although defendants claimed that plaintiff improperly rushed its reentry into the agreements because it knew of impending legislative changes, plaintiff had the legal authority to do so under the law in existence at that time. Furthermore, and contrary to defendants' assertions, the Legislature did not make its changes retroactive since it only expressly mentions "new" obligations, not the reentry into old agreements. Affirmed.

Edit Delete DC Circuit

EMPLOYMENT

Williams v. Johnson, Jan-16-2015

J. Ginsburg finds that the lower court properly found for plaintiff in her whistleblower action against her employer, the D.C. Department of Health, Addiction Prevention and Recovery Administration. She told the district council that her department's new client data tracking program was not up to par yet in contradiction to her supervisors' testimony and was harassed to the point of forced resignation shortly thereafter. This is a classic example of behavior protected under the D.C. Whistleblower Protection Act. It is irrelevant that the disclosures did not affect significant policy changes, and the jury was best positioned to decide the question of how oppressive the harassment really was. Also, the Act does not procedurally limit the claims either via a limitations period or a notice period. Affirmed.

Edit Delete DC Circuit

LABOR

World Color v. National Labor Relations Board, Jan-16-2015

J. Moreno finds that respondent improperly overturned petitioner employer's policy prohibiting employees from wearing baseball caps without the company logo. Federal labor law protects employees' rights to wear union insignia at work absent special safety concerns. This hat policy does not say violate this principle since an employee could easily wear a hat bearing both company and union logos. Reversed.

Edit Delete DC Circuit

TRANSPORTATION, CONTRACT, PROPERTY

City of New York v. National Railroad Passenger Corp., Jan-16-2015

J. Silberman finds that the lower court properly found for defendant in New York City's claim to recover $25 million spent rehabilitating a highway bridge in the Bronx. A 1906 agreement requires Amtrak's predecessor to maintain the bridge, but the national Rail Act ended this requirement when it said that Amtrak received the land free and clear of liens or encumbrances. The covenant thus did not run with the land. Amtrak also does not owe the city restitution since the bridge repairs were not due to its own misconduct, nor were they needed on an emergency basis. The general restitution request fails as well. Affirmed.

Edit Delete Florida Courts Of Appeal

FAMILY LAW

State of Florida v. T.S., Jan-16-2015

Per curiam, the court of appeals finds that the court improperly declined to terminate the parents' parental rights by relying on the availability of a nonadoptive placement with a relative. This option is expressly prohibited by law as a basis for determining whether termination is appropriate. On remand, the trial court must reevaluate grounds for termination without considering the nonadoptive placement with a relative. Reversed.

Edit Delete Florida Courts Of Appeal

FIREARMS, BATTERY

Dorelus v. State, Jan-16-2015

J. Villanti finds that the lower court improperly convicted defendant of being a felon in possession of a firearm. This charge was barred by defendant's acquittal on the related charge of aggravated battery with a firearm, which arose out of the same events. Reversed.

Edit Delete Florida Courts Of Appeal

NEGLIGENCE, JURY, DAMAGES

Schwartz v. Wal-Mart Stores, Jan-16-2015

J. Lambert finds that the trial court improperly granted a new trial to appellant in a negligence case. Evidence shows that a pumpkin falling on appellant's back could not have caused enough injury. Appellant is also not entitled to compensation for her medical exam, because she did not bring up the issue with the jury. Reversed.

Edit Delete Florida Courts Of Appeal

BURGLARY, EVIDENCE

L.A.R. v. State, Jan-16-2015

J. Black finds that the lower court properly denied defendant's motion to dismiss the burglary charge against him because the fingerprint evidence against him was insufficient to establish that he committed the crimes. Reversed.

Edit Delete Florida Courts Of Appeal

PROPERTY, DUE PROCESS

Hubsch v. Howell Creek Reserve Community, Jan-16-2015

J. Orfinger finds that the trial court improperly granted a foreclosure lien in favor of the homeowner's association. The homeowner, who is currently in prison, was not given a chance to appear at the hearing by telephone. Reversed.

Edit Delete Florida Courts Of Appeal

BANKING/LENDING, PROPERTY, EVIDENCE

Webster v. Chase Home Finance, Jan-16-2015

Per curiam, the court of appeals finds that the trial court improperly granted a foreclosure in favor of the bank. The homeowner did not receive a default notice and the bank did not present a business record showing a change of address for the other mortgagor in the case, which would have been sufficient to demonstrate proper noticing. Reversed.

Edit Delete Florida Courts Of Appeal

EMOTIONAL DISTRESS, RESTRAINING ORDER

Laserinko v. Gerhartdt, Jan-16-2015

Per curiam, the court of appeals finds that the trial court improperly granted an injunction for protection against stalking. There is no evidence that appellant repeatedly caused "substantial emotional distress" to the woman who filed the injunction. Reversed.

Edit Delete Georgia Court Of Appeals

CIVIL PROCEDURE

Flexstaff Services v. Johnson, Jan-16-2015

Per curiam, the court of appeals finds that appellant's application for discretionary appeal in a workers' compensation case must be dismissed as untimely.

Edit Delete Georgia Court Of Appeals

CRIMINAL PROCEDURE

Richards v. City, Jan-16-2015

Per curiam, the court of appeals finds that defendant's appeal must be dismissed for lack of jurisdiction. He failed to file the appropriate application for discretionary review.

Edit Delete Georgia Court Of Appeals

INSURANCE

Kennestone Hospital v. Travelers Home and Marine Insurance, Jan-16-2015

J. McMillian finds that the lower court properly granted summary judgment to an insurance company after a hospital failed to comply with the procedure for perfecting a medical services lien. The hospital didn't serve the person responsible for injuring the patient who received treatment. Affirmed.

Edit Delete Georgia Court Of Appeals

CIVIL PROCEDURE

Davis v. PHH Mortgage, Jan-16-2015

Per curiam, the court of appeals finds that appellant's application for discretionary appeal must be dismissed for lack of jurisdiction. Appellant's application for discretionary appeal from a dispossessory judgment was not timely.

Edit Delete Georgia Court Of Appeals

CRIMINAL PROCEDURE, THEFT

Sevostiyanova v. State, Jan-16-2015

Per curiam, the court of appeals finds that defendant's appeal of multiple traffic convictions must be dismissed. Defendant moved to modify her sentence. However, the timeline to modify a sentence had passed and her sentence was not void.

Edit Delete Georgia Court Of Appeals

CIVIL PROCEDURE

Kirkley v. Colfin A1-GA 1, Jan-16-2015

Per curiam, the court of appeals finds that appellant's application for discretionary appeal must be dismissed for lack of jurisdiction. Appellant was required to follow the discretionary appeal procedures, because the ruling was for a de novo appeal of a magistrate court decision. The application was also untimely.

Edit Delete Georgia Court Of Appeals

CRIMINAL PROCEDURE

Scott v. State, Jan-16-2015

Per curiam, the court of appeals finds that defendant's appeal must be dismissed. Defendant argued he had not been given proper credit for time served, but the court of appeals previously ruled that he was not entitled to the credit.

Edit Delete Indiana Court Of Appeals

DRUG OFFENDER, SEARCH

White v. Indiana, Jan-16-2015

J. Riley finds that defendant was properly convicted on drug charges. The arresting officer had probable cause to stop defendant because his vehicle looked like it had fled from a property damage accident. Also, the officer had the right to perform a strip search because he noticed a strong drug odor on defendant. Affirmed.

Edit Delete Indiana Court Of Appeals

FAMILY LAW

K.B. v. Indiana Department of Child Services, Jan-16-2015

J. Riley finds that the trial court properly took guardianship over the father's children. The father and his girlfriend failed to provide a stable home for his children. Also, because of their battle with drugs, the children were properly taken from the home. Affirmed.

Edit Delete Iowa Court Of Appeals

ROBBERY, FORGERY, INEFFECTIVE ASSISTANCE

Iowa v. Weatherspoon, Jan-16-2015

J. Mullins finds that the lower court properly convicted a man of robbery, theft, unauthorized use of a credit card and forgery. Counsel was not ineffective for not getting the court to throw out evidence of an earlier attack on two women that may have been the same suspect, because it was hoping to use the fact that women could not identify the suspect to argue for mistaken identity. In addition, counsel was not obligated to make sure the unauthorized use of a credit card was included as a lesser offense of forgery, since either can be committed independently of the other. Affirmed.

Edit Delete Iowa Supreme Court

FAMILY LAW

Gust v. Gust, Jan-16-2015

J. Appel finds that the district court properly awarded indefinite spousal support to the wife in a divorce proceeding. The husband will make $92,000 yearly, while the wife, who spent part of the marriage taking care of the house and children while the husband worked, can only make $22,500. The court's award of $1,400 monthly until child support ends and $2,000 thereafter positions the wife near her pre-divorce lifestyle without greatly distancing the husband from his. Affirmed.

Edit Delete Kansas Courts Of Appeal

SENTENCING, SEX OFFENDER

Kansas v. Reed, Jan-16-2015

J. Powell finds that defendant did not adequately prove that lifetime postrelease supervision constituted cruel and unusual punishment. Defendant was convicted of trying and failing to touch a child under the age of 14. He unsuccessfully argued that his sentence should be mitigated by the fact that he failed to complete the act he was attempting. Affirmed.

Edit Delete Kansas Supreme Court

ASSAULT, BATTERY

Kansas v. Hobbs, Jan-16-2015

J. Beier finds that defendant was properly convicted of aggravated battery after a man he punched outside an Emporia bar hit his head on the bumper of a car and suffered life-threatening injuries. The state is not required to prove that defendant "intended the precise harm" suffered by his victim, only "some type of great bodily harm" that would result from his actions. Affirmed.

Edit Delete Kansas Supreme Court

FAIR TRIAL, MURDER, SENTENCING

Kansas v. Killings, Jan-16-2015

J. Rosen finds that defendant was properly convicted of premeditated first-degree murder despite several irregularities and errors during his trial, including improper jury instructions and certain comments made by the prosecutor during closing arguments. These errors were "harmless" in the face of overwhelming evidence proving defendant's guilt. However, defendant was improperly sentenced to a hard 50 life sentence. Affirmed in part.

Edit Delete Kentucky Court Of Appeals

FAMILY LAW

Hoskins v. Hoskins, Jan-16-2015

J. Thompson finds that the circuit court improperly modified the husband's timesharing with his son. The guardian ad litem who represented the child should not have been allowed to conduct an investigation and file a report. This prevented the father from being able to cross-examine the guardian ad litem. Reversed.

Edit Delete Kentucky Court Of Appeals

FAMILY LAW, PENSIONS

Brown v. Brown, Jan-16-2015

J. Jones finds that the circuit court properly awarded a wife a pro-rata share of the husband's annuity under the Civil Service Retirement System. The award correctly included cost-of-living increases, even though they did not exist at the time of the couple's 2002 divorce. Affirmed.

Edit Delete Massachusetts Supreme Court

MURDER, IDENTIFICATION, EVIDENCE

Commonwealth v. Bresilla, Jan-16-2015

J. Cordy finds that the lower court properly convicted defendant of first degree murder based on a shooting at a nightclub. There is no requirement that the murder weapon be recovered for a conviction to take place. The evidence against defendant was more than adequate and included eyewitness testimony and a positive test for gunshot residue. Two witnesses identified his jacket as the one worn by the shooter. There was no need to create a "jacket lineup" for them. The prosecutor simply showed a picture of a jacket to the witnesses and asked if they recognized it. This is not unduly suggestive. Affirmed.

Edit Delete Missouri Court Of Appeals

SEX OFFENDER

Wilder v. Missouri, Jan-16-2015

J. Francis finds that the trial court improperly convicted defendant for failing to register as a sex offender. Defendant argues that it was erroneous to find he knowingly failed to register as a sex offender when he moved to Missouri 30 years ago. There was not evidence provided to support that defendant knowingly committed a felony by failing to register as a sex offender after the federal requirements were changed. Reversed.

Edit Delete Nebraska Supreme Court

MURDER, INEFFECTIVE ASSISTANCE, INTENT

Nebraska v. Armendariz, Jan-16-2015

J. Stephan finds that the lower court properly accepted the 17-year-old defendant's plea to charges of second degree murder and use of a firearm to commit a felony. While defendant claims he was intoxicated due to his use of marijuana, he does not provide details on how much of the drug he consumed, the amount consumed, or how the usage impacted him. Therefore, defendant failed to demonstrate that the level of intoxication was so great that it "wholly deprived" him of reason. Consequently, his attorney was not ineffective for failing to advise him on the defense of intoxication. Affirmed.

Edit Delete Nebraska Supreme Court

CLASS ACTIONS, GOVERNMENT

Sanitary and Improvement District No. 1 v. Adamy County Treasurer, Jan-16-2015

Plaintiffs filed a class action lawsuit claiming that defendant county treasurers unlawfully deducted an incorrect percentage of assessments for municipal improvements. J. Heavican finds that the lower court improperly dismissed plaintiffs' claim, as plaintiff constitutes a local governmental unit. Therefore, since plaintiffs have the "power to pass all necessary ordinances, orders, rules, and regulations for the necessary conduct of its business and to carry into effect the objects for which the sanitary and improvement district was formed," plaintiffs have stated a valid cause of action. Reversed.

Edit Delete Nebraska Supreme Court

ATTORNEYS

Nebraska v. Mingus, Jan-16-2015

Per curiam, the Nebraska Supreme Court accepts attorney Daniel Mingus's surrender of his license and enters an order of disbarment, as Mingus voluntarily surrendered his license and has waived all proceedings against him. Affirmed.

Edit Delete Nebraska Supreme Court

MEDICAL MALPRACTICE, GOVERNMENT

Brothers v. Kimball County Hospital, Jan-16-2015

J. Cassel finds that the court of appeals properly dismissed the medical negligence claim that was brought after the staff at Kimball County Hospital Emergency Room failed to properly diagnose plaintiff's broken finger. While defendant hospital is a county-owned hospital, it is a separate and distinct political subdivision from the county, as the hospital's board of trustees, instead of the county board, is responsible for the hospital's employees. Since the hospital's governing body is responsible for creating its own guidelines, defendant Kimball County has "no liability as a matter of law." Affirmed.

Edit Delete Nebraska Supreme Court

PUBLIC RECORD, GOVERNMENT

Frederick v. Falls City, Jan-16-2015

J. Stephan finds that the trial court improperly ordered defendant, Economic Development and Growth Enterprise, to produce certain documents relating to a specific economic development project. While defendant receives 63 percent of its funding from public sources, it is not an agency, as defendant was created by private parties with employees that are not government employees, and the employees are not housed in city buildings. Since defendant's financial records are kept separately from those of Falls City, the city does not control defendant's board, and the records requested by plaintiff are not "public records." Reversed.

Edit Delete Nebraska Supreme Court

ATTORNEYS

Nebraska v. White, Jan-16-2015

Per curiam, the Nebraska Supreme Court accepts attorney Douglas White's voluntary surrender of his license and enters an order of disbarment, as White voluntarily surrendered his license and has waived all proceedings against him. Affirmed.

Edit Delete New Hampshire Supreme Court

PENSIONS, CONTRACT

American Federation of Teachers v. New Hampshire, Jan-16-2015

J. Dalianis finds that the lower court improperly ruled that legislative changes to the definition of "earnable compensation," the figure determining New Hampshire Retirement System pension benefits, are unconstitutional. The legislature changed the definition of "earnable compensation" in 2008 to exclude "other compensation," a change which will reduce an employee's final pension benefits, which are based on the employee's three highest years of earnable compensation. The prior statute does not constitute a binding contract, because the legislature never indicated that it was not permitted to change it. However, the court correctly found that employees do not have vested rights to cost-of-living adjustments to their pensions. Reversed in part.

Edit Delete New Hampshire Supreme Court

ASSAULT, KIDNAPPING

State v. Roy, Jan-16-2015

J. Bassett finds that the lower court properly convicted defendant of kidnapping, assault, and criminal restraint. The evidence was sufficient to support the finding that defendant assaulted all three of his girlfriends' children, and severely injured one of the children. Text messages sent by defendant were properly admitted at trial, because the messages and his intent in committing the crimes were closely connected. Affirmed.

Edit Delete New Jersey Appellate Division

MUNICIPAL LAW, ZONING

Myers v. Ocean City Zoning Board of Adjustment, Jan-16-2015

J. Ostrer finds that the lower court improperly ordered Ocean City to respond to a zoning recommendation in its master development plan. There is no reason to require a government body to adopt an ordinance consistent with such a ruling so long as the existing ordinance substantially complies with the master development plan. Municipal zoning ordinances are usually presumed valid as well. Reversed.

Edit Delete North Carolina Business Court

PARTNERSHIPS, FIDUCIARY DUTY, FRAUD

Soft Line v. Italian Homes, Jan-16-2015

The parties' joint venture dissolved when neither party made a profit. Plaintiff subsequently filed charges that included breach of fiduciary duty and fraud. J. Gale defers all judgment, as there is a question of whether plaintiff's claims were barred by the statute of limitation. The matter of whether the continuing wrong doctrine applies must first be determined before a ruling can be made.

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