133 results for 'filedAt:"2023-08-29"'.
J. Landau finds the lower court properly determined that a neighborhood's amended restricted covenants are valid and enforceable. A property owner who leases his property for short-term rentals challenges the enforceability of the neighborhood's amended restricted covenants that changed the minimum residential rental period to 90 days or greater, effectively restricting short-term rentals for periods shorter than 90 days. Because the original scheme of development outlined that the restricted covenants could be amended at any time, the property owner purchased the property with the understanding that the terms could change. Affirmed.
Court: Texas Courts of Appeals, Judge: Landau, Filed On: August 29, 2023, Case #: 01-22-00401-CV, Categories: Property, Real Estate
J. Bumb grants the township and its officials' motion to dismiss the strip mall operators' complaint alleging that the officials' various municipal enforcement actions against the strip mall were part of an anti-Semitic vendetta. The operators have not established standing to bring claims related to the township's denial of an application brought by a prospective tenant of the strip mall, nor any of their other claims. They have also failed to establish that the township's issuance of a hazard notice and subsequent lockout of mall tenants for emergency repairs constituted a taking, nor sufficiently detailed allegations to demonstrate that the township's conduct violated due process requirements. They have not shown that issuance of the notice during Rosh Hashanah was deliberate or motivated by bias, nor that the appearance of swastikas on the property was connected to the township's actions. State law claims also fail.
Court: USDC New Jersey, Judge: Bumb, Filed On: August 29, 2023, Case #: 1:22cv4931, NOS: Other Civil Rights - Civil Rights, Categories: Civil Rights, Municipal Law, Property
J. Rose grants the lenders' motion for summary judgment, ruling they are able to enforce both the mortgage and the equity line of credit because the statute of limitations did not begin to run until either the acceleration clauses were activated or the loans reached their maturity dates, not when the borrower first missed a payment obligation.
Court: USDC Southern District of Ohio, Judge: Rose, Filed On: August 29, 2023, Case #: 3:22cv209, NOS: Other Statutory Actions - Other Suits, Categories: Civil Procedure, Debt Collection, Banking / Lending
J. Che finds that the lower court properly upheld a fine against a for-profit corporation for offering insurance without proper authority. The company sells memberships that offer assistance to members for legal fees incurred as a result of a self-defense incident, but it is not authorized to conduct insurance services in the state. The company's claims that these membership benefits do count as insurance are without merit, as they are measurable amounts relating to legal expenses and meet the legal standards of insurance. Affirmed.
Court: Washington Court Of Appeals, Judge: Che, Filed On: August 29, 2023, Case #: 57043-2-II, Categories: Insurance, Licensing
J. Ritter grants, in part, the insurer's motion to dismiss, ruling the estate representative lacks standing to bring a contract-based claim because the insurer did not violate the terms of the life insurance policy when it paid the death benefit to the contingent beneficiary, the only beneficiary remaining at the time of the policyholder and primary beneficiary's deaths.
Court: USDC New Mexico, Judge: Ritter, Filed On: August 29, 2023, Case #: 1:22cv687, NOS: Insurance - Contract, Categories: Insurance, Contract
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J. Pedersen finds that the lower court properly dismissed the appellant company's claims after granting the government defendants' pleas to the jurisdiction. The company, which operated a steak restaurant during the Covid-19 pandemic, argued that the various emergency orders limiting capacity at restaurants amounted to a taking of its property, and it sought damages as a result. However, the company failed to plead a valid taking claim. Affirmed.
Court: Texas Courts of Appeals, Judge: Pedersen, Filed On: August 29, 2023, Case #: 05-21-00965-CV, Categories: Constitution, Business Practices, Covid-19
Per curiam, the Supreme Court of Ohio finds the Board of Tax Appeals properly upheld the use tax imposed by the tax commissioner on the data center. Although the contractor who built the center paid taxes on certain pieces of equipment, there is no precedent that prevents further assessments on the user of the equipment after construction is complete. Affirmed.
Court: Ohio Supreme Court, Judge: Per curiam, Filed On: August 29, 2023, Case #: 2023-Ohio-2974, Categories: Construction, Tax
J. Kleeh denies the motion to certify as class action the medical patient's personal injury suit claiming a drug wholesaler, two pharmacies and a medical supply company conspired with a Pennsylvania doctor by paying him to misdiagnose her and other former patients in exchange for referrals to the companies for immunoglobulin therapy. The patient's specific, personal medical experience "is not common, class-wide proof to establish whether other individuals had [chronic inflammatory demyelinating polyneuropathy] or benefitted from IVIG."
Court: USDC Northern District of West Virginia, Judge: Kleeh, Filed On: August 29, 2023, Case #: 1:19cv73, NOS: Other Personal Injury - Torts - Personal Injury, Categories: Tort, Business Practices, Class Action
J. Jackson denies the Equal Employment Opportunity Commission's motion to quash certain subpoenas duces tecum that were issued to non-parties in this age discrimination lawsuit. The subpoenas were issued to the claimants' subsequent employers, but most of the non-parties are "outside of the Eastern District of Oklahoma." Accordingly, the court lacks jurisdiction to quash the subpoenas. However, the court grants the motion as to its request for a protective order.
Court: USDC Eastern District of Oklahoma, Judge: Jackson, Filed On: August 29, 2023, Case #: 6:21cv295, NOS: Employment - Civil Rights, Categories: Civil Procedure, Jurisdiction, Discovery
J. Marbley denies the patients' motion for class certification, ruling that while the health care provider admits it sent more than 20,000 letters in the wake of a data breach, the class representatives have submitted no evidence to indicate what percentage of those letters were sent to patients and, therefore, they cannot meet numerosity requirements.
Court: USDC Southern District of Ohio, Judge: Marbley, Filed On: August 29, 2023, Case #: 2:19cv4453, NOS: Other Civil Rights - Civil Rights, Categories: Privacy, Class Action
J. Riedmann finds the Workers’ Compensation Court properly determined the employee failed to prove that he suffered a neck injury during a surgical procedure to repair a work-related shoulder injury exacerbated by a fall on ice in the company parking lot. The neck injury was found by experts to be a routine flare-up of underlying cervical wear, and not an aggravation of the shoulder injury or caused by his positioning during surgery. The shoulder injury is compensable. Affirmed.
Court: Nebraska Court Of Appeals, Judge: Riedmann, Filed On: August 29, 2023, Case #: A-23-002, Categories: Health Care, Tort, Workers' Compensation
J. Weiler grants, in part, taxpayer’s motion to impose sanctions, it was premature to award expenses and fees.
Court: U.S. Tax Court, Judge: Weiler, Filed On: August 29, 2023, Case #: 2023-111, Categories: Sanctions, Tax, Attorney Fees
J. Doughty denies summary judgment to both the manufacturer and a Louisiana seller a $350,000 motor home, declining to dismiss a suit by an equipment company based in Montana. There is a genuine issue of material fact regarding the redhibitory defects of the vehicle for which the manufacturer is allegedly responsible. Moreover, there is also a genuine dispute of a material fact regarding the waiver in the “buyer’s order” and its relationship to a service contract for both the dealership and the manufacturer, making summary judgment on these issues inappropriate.
Court: USDC Western District of Louisiana , Judge: Doughty, Filed On: August 29, 2023, Case #: 6:22cv871, NOS: Other Contract - Contract, Categories: Vehicle, Warranty, Contract
J. Land refuses to find in favor of the medical alert company on the son's negligence action alleging violations of Georgia's Fair Business Practices Act and Unfair and Deceptive Practices Towards the Elderly Act. The action arose after the company's emergency response system operator failed to tell a local 911 service that the mother's doors were locked and failed to convey that she had lost contact with the mother. Emergency treatment was delayed as a result and the mother went into cardiac arrest and died three days later. Genuine issues of fact exist as to whether the company offered its medical alert systems for sale to the general public and whether it made false representations about its system which contributed to the mother's death.
Court: USDC Middle District of Georgia, Judge: Land, Filed On: August 29, 2023, Case #: 4:21cv71, NOS: Other Personal Injury - Torts - Personal Injury, Categories: Negligence, Business Practices
Per curiam, the Supreme Court of Ohio finds the appeals court erroneously granted the employee's request for a writ of mandamus. The Industrial Commission's initial decision to deny the applicant's request for total disability benefits was based on proper medical evidence, including an independent examiner who found the applicant could complete sedentary work with some accommodations, including frequent breaks. Reversed.
Court: Ohio Supreme Court, Judge: Per curiam, Filed On: August 29, 2023, Case #: 2023-Ohio-2975, Categories: Evidence, Workers' Compensation
Per curiam, the circuit finds that the district court properly applied a two-level enhancement in sentencing defendant based on his guilty plea to conspiring to sell heroin and fentanyl. Defendant contends the enhancement for having a "drug-distribution premises" was procedurally unreasonable, but while he no longer lived at the residence, defendant kept the apartment and, by his own admission, continued to sell narcotics from the place. Affirmed.
Court: 2nd Circuit, Judge: Per curiam, Filed On: August 29, 2023, Case #: 22-331-cr, Categories: Drug Offender, Sentencing
J. Cooper dismisses a retirement service company's action challenging a release issued by the Department of Labor that questioned the risks of investing in cryptocurrency and warned retirement plan sponsors of their duties under ERISA, which the company claims led retirement plans to backout of discussions to partner with it. The company fails to show the fiduciaries would renew their discussions if granted the requested relief, and the release is not a final agency action subject to judicial review.
Court: USDC District of Columbia, Judge: Cooper, Filed On: August 29, 2023, Case #: 1:22cv1551, NOS: Administrative Procedure Act/Review or Appeal of Agency Decision - Other Suits, Categories: Administrative Law, Erisa, Fiduciary Duty
J. Rowe finds the circuit court improperly denied the department’s expedited petition to terminate the father’s parental rights after police discovered baggies, a scale, a glass pipe and needles in the home pursuant to an FBI investigation into child pornography. They also confirmed that the father transmitted child sexual abuse images on the internet. The court’s findings that the department failed to prove that termination was supported on statutory grounds requiring actual harm lack evidentiary support. A best interest finding is supported by evidence, and termination is the least restrictive means to protect the child. The court’s legal conclusions also conflict with applicable statutes. Reversed and remanded.
Court: Florida Courts Of Appeal, Judge: Rowe, Filed On: August 29, 2023, Case #: 1D22-2969, Categories: Evidence, Family Law, Guardianship
J. Gravois finds that the trial court should not have dismissed a voter's challenge to a candidate for the office of St. John the Baptist Parish Council, District 5. The voter established that the state department of revenue did not have a record of the candidate's income tax returns for 2021 and 2022. The candidate did not establish that he was not required to file returns for these years because he did not have taxable income from his disability, retirement, and Social Security. Reversed.
Court: Louisiana Court Of Appeal, Judge: Gravois, Filed On: August 29, 2023, Case #: 23-CA-420, Categories: Elections, Evidence
J. Ellis finds that the lower court improperly found for the dentist in a medical malpractice suit because the patient failed to present expert testimony on the element of proximate cause. Some of the patient's claims require such expert testimony, but others do not.
Court: Illinois Appellate Court, Judge: Ellis, Filed On: August 29, 2023, Case #: 211448, Categories: Experts, Medical Malpractice
J. Ives finds the lower court erroneously granted the state's motion for summary judgment on the corrections officer's whistleblower and retaliation complaint. The New Mexico Whistleblower Protection Act does not exclude claims based on statements made through the normal chain of command or statements that do not involve a specific public interest. Additionally, even though the officer was not demoted after he reported being assaulted by several officers and his lieutenant, there is a question of fact as to whether his transfer to the mailroom, which deprived him of any opportunity to work overtime, constituted a retaliatory action. Reversed.
Court: New Mexico Court of Appeals, Judge: Ives, Filed On: August 29, 2023, Case #: A-1-CA-39774, Categories: Evidence, Whistleblowers, Employment Retaliation
J. Fitzgerald Smith finds that the lower court properly denied defendant's petition for a certificate of innocence after his aggravated unlawful use of a weapon conviction was vacated as unconstitutional. Defendant is not entitled to a certificate of innocence because he cannot show he was innocent of the valid AUUW offense with which he was charged, but that the state nol-prossed. Affirmed.
Court: Illinois Appellate Court, Judge: Fitzgerald Smith, Filed On: August 29, 2023, Case #: 220843, Categories: Criminal Procedure, Weapons
J. Breedlove finds that the lower court improperly denied dismissal of certain claims pursuant to the Texas Citizens Participation Act in this dispute between "direct competitors in the oil and gas industry." The email at issue, which allegedly included statements about the plaintiff company, pertained to "a matter of public concern," and the plaintiff company failed to establish "a prima facie case of damages." Reversed in part.
Court: Texas Courts of Appeals, Judge: Breedlove, Filed On: August 29, 2023, Case #: 05-22-01260-CV, Categories: Civil Procedure, Damages, Defamation
J. Rose denies the Florida-based IT company's motion to dismiss, ruling the trips made by its executives to Ohio during the formation of the joint venture, as well as the number of employees living in Ohio who have conducted work for the company, grant this court jurisdiction under the state's long-arm statute.
Court: USDC Southern District of Ohio, Judge: Rose, Filed On: August 29, 2023, Case #: 3:23cv137, NOS: Stockholders’ Suits - Contract, Categories: Jurisdiction, Contract
[Consolidated.] J. Moore finds the county court sitting as juvenile court properly terminated both parents’ rights to their children. The children were placed in the custody of the Department of Health and Human Services due to concerns of meth use and domestic violence in the home and have remained in out-of-home placements for the last three years. The parents have made inconsistent progress with case plan compliance with drug testing, and maintaining a positive coparenting relationship free from yelling, hitting, kicking, stabbing or other violent behavior. There have been relapses in drug use, missed visits and a failure to address domestic violence issues. Affirmed.
Court: Nebraska Court Of Appeals, Judge: Moore, Filed On: August 29, 2023, Case #: A-23-089, Categories: Family Law, Guardianship
J. Chaney finds that the trial court properly dismissed a professor's suit seeking reimbursement from a state university for home office equipment he had to buy to teach remotely during the Covid-19 pandemic. The school is a department of the state that is exempt from Labor Code provisions that infringe on its sovereignty under the Education Code to set rules for expense reimbursement. Affirmed.
Court: California Courts Of Appeal, Judge: Chaney, Filed On: August 29, 2023, Case #: B320588, Categories: Employment, Immunity, Covid-19