27 results for 'judge:"Gibbons "'.
J. Gibbons finds the district court properly divided property, calculated alimony and allowed the attorney's lien for fees in this divorce decree. The ex-wife filed for divorce after the ex-husband, she alleges, lost all community assets trading futures. The wife abandoned her marital waste claim, seeking to enforce an oral agreement that she receive the husband's interest in the residence. The court correctly allowed for the lien due to the wife's pursuit of the frivolous marital waste claim. Affirmed in part.
Court: Nevada Court of Appeals, Judge: Gibbons , Filed On: May 3, 2024, Case #: 84255-COA, Categories: Family Law, Property
J. Gibbons finds the district court improperly denied the "gig" worker's petition for review of his liability for overpayment of pandemic assistance benefits. The appeals referee made no findings demonstrating he considered the nuances of the gig economy or whether a diminution of usual services occurred due to the pandemic. The referee improperly relied on the worker's testimony he had no job offers retracted due to the pandemic to conclude he was an unreliable witness. Reversed.
Court: Nevada Court of Appeals, Judge: Gibbons , Filed On: April 24, 2024, Case #: 85942-COA, Categories: Employment, Evidence, Covid-19
J. Gibbons finds the district court properly awarded primary custody of the divorced parties' child to the father. Though the mother says the summons was sent to a previous address and that she did not receive proper service, she did not seek dismissal. Seeking adjudication on the merits, she effectively consented to the court's jurisdiction and waived dismissal based upon a failure to effectuate service. The record supports the court's denial of the mother's request for child support arrears. Affirmed.
Court: Nevada Court of Appeals, Judge: Gibbons , Filed On: April 12, 2024, Case #: 87208-COA, Categories: Family Law, Due Process, Guardianship
J. Gibbons finds the district court improperly granted the ex-wife's motion to enforce the divorce decree and enter an amended qualified domestic relations order. The order indicated the ex-wife is entitled to one half of her ex-wife's public employee retirement benefits, including survivor benefits. The order is inconsistent with guiding case law holding that "unless specifically set forth in the divorce decree, an allocation of a community property interest in the employee spouse's pension plan does not also entitle the nonemployee spouse to survivor benefits." Reversed.
Court: Nevada Court of Appeals, Judge: Gibbons , Filed On: April 10, 2024, Case #: 86043-COA, Categories: Family Law, Property
J. Gibbons finds the district court improperly dismissed this DUI-causing-substantial-bodily-harm case. Defendant was witnessed attempting to exit the passenger side of a vehicle that had just run a stop sign and hit another vehicle, injuring the occupants. A blood test showed defendant's alcohol level at twice the legal limit. No other person was found in the car or area, and defendant's blood was found on the driver's side airbag. Though one of the responding officers referred to defendant as a "bitch," without considering the ensuing bad faith allegations as part of the whole investigation, this is insufficient to find bad faith conduct. Reversed.
Court: Nevada Court of Appeals, Judge: Gibbons , Filed On: April 8, 2024, Case #: 86371-COA, Categories: Dna, Evidence, Dui
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J. Gibbons finds the district court properly dismissed this land and civil rights dispute. The landowner claims the Bureau of Land Management harmed his property rights by canceling his grazing permit for a portion of land over which he says he has right-of-way, as well as water and grazing rights. The road builder and users of the road built on the land were variously improperly served. The property owner also failed to correctly allege civil conspiracy claims and filed other claims outside limitations. Affirmed.
Court: Nevada Court of Appeals, Judge: Gibbons , Filed On: April 8, 2024, Case #: 85779-COA, Categories: Property, Water, Agency
J. Gibbons finds the lower court properly denied the police officers' motion for qualified immunity on unreasonable seizure claims brought by the detained individual. Dashcam evidence of the traffic stop shows the driver most likely did not commit the infractions claimed by the officers, which would allow a reasonable juror to conclude the stop was unconstitutional. However, because one of the detainees was verbally abusive toward the officers and attempted to free his arm while turning away from one of the officers, it was objectively reasonable for the officer to take him to the ground and the lower court should have granted immunity on that excessive force claim. Affirmed in part.
Court: 6th Circuit, Judge: Gibbons, Filed On: March 28, 2024, Case #: 22-2038, Categories: Civil Rights, Evidence, Immunity
J. Gibbons finds the lower court properly enforced the subpoena filed by the Equal Employment Opportunity Commission. Although the notice was sent to the employer's legal counsel and uploaded to the EEOC's online portal, the employer had accepted service of previous subpoenas in this fashion and cannot claim it was not properly served. Additionally, the improper reply date on the subpoena was merely a scrivener's error that did not render the entire document defective and allowed the court to enforce the subpoena. Affirmed.
Court: 6th Circuit, Judge: Gibbons, Filed On: March 26, 2024, Case #: 23-1719, Categories: Civil Procedure, Employment, Discovery
J. Gibbons finds a federal court in Ohio properly dismissed a former OG/GYN student���s lawsuit against the Wright State University medical school, which dismissed her from the program ��� resulting in her firing from a hospital residency ��� after her ���unprofessional behavior��� resulted in ���a long series of complaints.��� Neither her contract nor her due process rights were violated when she was dismissed. Affirmed.
Court: 6th Circuit, Judge: Gibbons, Filed On: March 21, 2024, Case #: 23-3475, Categories: Education, Health Care
J. Gibbons finds the lower court erroneously granted the fracking company employees' motion for judgment on liability for Fair Labor Standards Act claims because there are issues of fact regarding whether the employees' irregular schedules are necessitated by the industry or are caused solely by the fracking company's predetermined work schedule. Although many of the weeks during which employees worked fewer than 40 hours stemmed from scheduled time off, a large portion also came from weeks with full work schedules, which lends support to the company's theory irregularities in scheduling are a result of fluctuating demand for services; therefore, the case must be remanded for further analysis. Reversed.
Court: 6th Circuit, Judge: Gibbons, Filed On: March 6, 2024, Case #: 23-3247, Categories: Employment, Evidence, Labor
J. Gibbons finds the county court properly denied the state's petition for judicial review in a highway patrol officer's case concerning workers' compensation benefits for heart disease. The insurer denied the claim, finding the officer had predisposing conditions. However, an investigation following the officer's appeal showed he had taken proper measures to correct the condition, and the appeals officer then found the claim compensable. The state has not shown that correcting the predisposing condition was within the officer's ability. Affirmed.
Court: Nevada Court of Appeals, Judge: Gibbons , Filed On: February 26, 2024, Case #: 84035-CoA, Categories: Evidence, Health Care, Workers' Compensation
J. Gibbons finds the county court properly granted summary judgment to Duetsche Bank on its action to enforce a lost note after being designated the assignee of the deed of trust used by the borrower to secure a home loan. The cited statute allows for the bank to enforce a lost instrument by showing its predecessor-in-interest was entitled to enforce when possession was lost. Though the borrower says the bank's prior loan servicer's lost note affidavit is inconsistent with the current loan servicer's affidavit, the affidavits still show possession had been lost. Affirmed.
Court: Nevada Court of Appeals, Judge: Gibbons , Filed On: February 26, 2024, Case #: 84696-CoA, Categories: Bankruptcy, Evidence, Banking / Lending
J. Gibbons finds the trial court properly convicted defendant for attempted sexual assault and incest. Defendant says the court incorrectly accepted his Alford plea being that he did not understand the elements of sexual assault. Defendant did not take his plea until after voir dire, when the victims were ready to testify. The court also based its sentencing decision on the facts of the crimes, indicating the defendant's failure to acknowledge his immorality was used as a sentencing factor. The court did not vindictively sentence defendant because he exercised his right to a jury trial. Affirmed
Court: Nevada Court of Appeals, Judge: Gibbons , Filed On: February 20, 2024, Case #: 85880-CoA, Categories: Jury, Sex Offender, Child Victims
J. Gibbons finds the county court properly denied defendant's petition for a writ of mandamus. Defendant seeks to challenge the court's denial of his motion to dismiss his DUI charge, claiming he faces fines in excess of $1,000, which raises the offense above that of a misdemeanor, depriving the court of jurisdiction. The legislature has shown its clear intent in requiring payment of a civil penalty, and defendant has failed to show he will pay a criminal penalty. Affirmed.
Court: Nevada Court of Appeals, Judge: Gibbons , Filed On: February 20, 2024, Case #: 87000-CoA, Categories: Dui, Jurisdiction
J. Gibbons finds the district court properly denied the inmate's postconviction petition for a writ of habeas corpus without an evidentiary hearing. The inmate challenges the disciplinary panel's withdrawal of good time credit for his refusal to submit to handcuffs while being moved. The court's finding is supported by the officer's statements, and the inmate failed to allege facts showing he requested video evidence, or that it would contradict the statements. Affirmed.
Court: Nevada Court of Appeals, Judge: Gibbons , Filed On: February 15, 2024, Case #: 86579-COA, Categories: Evidence, Prisoners' Rights
J. Gibbons finds that while the government constructively amended defendant's indictment on a murder-for-hire charge when it filed a superseding indictment without required language about death resulting from the crime, defendant's due process rights were not violated. The prosecution repeatedly mentioned the language and its corresponding increase in potential punishments, while defendant made clear throughout the trial he was aware of the crimes with which he was charged. Affirmed.
Court: 6th Circuit, Judge: Gibbons, Filed On: February 9, 2024, Case #: 22-1650, Categories: Criminal Procedure, Murder, Due Process
J. Gibbons finds the district court properly divided property according to the divorce decree. The husband continued filing motions to harass the wife, and the district court properly ordered each party keep any remaining property in their possession except for that specifically awarded to the other party. Though the husband claims bias due to the court's having seen him wearing a t-shirt bearing a slogan suggesting the court is corrupt, he has not shown the judge formed an opinion reflecting favoritism or antagonism. Affirmed in part.
Court: Nevada Court of Appeals, Judge: Gibbons , Filed On: February 8, 2024, Case #: 86246-COA, Categories: Family Law, Property
J. Gibbons finds the trial court, by plea agreement, properly convicted defendant for attempted sexual assault. Though defendant claims the probation condition requiring drug testing improperly delegates authority to the division of parole, his cited federal statute requiring courts to set the number of tests is not applicable to this case. Also, that defendant may not possess sexually stimulating materials is not overbroad. Affirmed.
Court: Nevada Court of Appeals, Judge: Gibbons , Filed On: February 8, 2024, Case #: 85986-COA, Categories: Sentencing, Sex Offender
[Consolidated.] J. Gibbons finds the lower court erroneously dismissed the false advertising claims filed by the windshield repair sealant manufacturer against the auto glass replacement company. Affidavits from commercial customers about statements made by the glass replacement company about the efficacy of sealant on cracks longer than six inches are sufficient to establish causation in the mind of a reasonable juror. Meanwhile, the Ohio Uniform Trade Secrets Act counterclaim filed by the glass replacement company was also improperly dismissed because the company had no reason to believe any of its trade secrets had been stolen by a former employee until his deposition in this litigation, which rendered the counterclaim timely. Reversed in part.
Court: 6th Circuit, Judge: Gibbons, Filed On: January 16, 2024, Case #: 22-3204, Categories: Civil Procedure, Fraud, Trade Secrets
J. Gibbons finds the trial court properly divided property held in a revocable living trust in this divorce action. Though the ex-wife, as a licensed realtor, managed properties held in the trust, both parties are co-settlors and co-trustees, and the trust did not need to be named in the divorce or joined as a necessary party. The trial court had authority to distribute the trust's assets as community property. The ex-wife failed to overcome the community property presumption by clear and convincing evidence. Affirmed.
Court: Nevada Court of Appeals, Judge: Gibbons , Filed On: November 30, 2023, Case #: 84950-COA, Categories: Family Law, Property, Trusts
J. Gibbons finds the trial court improperly found for a high school on a student victim's deliberate indifference claim. The reporting of more than 1,000 instances of sexual misconduct at the school prior to the assault put the school on notice of a pervasive sexual harassment problem and allows her to bring the claim for the school's conduct before her assault. Furthermore, the lower court properly found for the victim on her Title IX claims related to the school's failure to discipline any of those involved or ensure the victim had access to education, as the administrators were aware of the numerous threats against the victim and her family following the release of a video of her sexual assault, which prevented her from attending school and resulted in lasting psychological harm. Affirmed.
Court: 6th Circuit, Judge: Gibbons, Filed On: November 15, 2023, Case #: 22-5125, Categories: Civil Rights, Education, Equal Protection
J. Gibbons denies the Bulgarian immigration's petition for review of the Board of Immigration Appeals' decision, ruling that even though he testified about being assaulted twice upon his return to Bulgaria for being Roma, he failed to include these incidents in his initial interview and I-589 form, which discredits his testimony.
Court: 6th Circuit, Judge: Gibbons, Filed On: August 18, 2023, Case #: 22-3760, Categories: Evidence, Immigration
J. Gibbons finds the district court properly found that there had been a substantial change in circumstances affecting the child's welfare and modified physical custody based on the child's best interest. The court, however, abused its discretion by improperly characterizing the custodial award as primary physical custody when it was in fact sole physical custody. This restricted the mother's parenting time without adequate findings, failing to consider a less restrictive arrangement and delegating substantive decision-making authority to a therapist. Affirmed in part.
Court: Nevada Court of Appeals, Judge: Gibbons , Filed On: July 27, 2023, Case #: 84893-COA, Categories: Family Law
J. Gibbons finds the lower court properly granted the paramedics' motion for summary judgment on the grounds of qualified immunity because their decision to stop live-saving treatment did not expose the victim to a "private act of violence" that would render them liable for her death. Although the victim eventually woke up in the funeral home after being placed in a body bag, her family members were not prevented from providing medical assistance after the paramedics left the home and the paramedics made no affirmative actions that would allow the estate to pursue a state-created danger theory of liability. Affirmed.
Court: 6th Circuit, Judge: Gibbons, Filed On: July 26, 2023, Case #: 22-1681, Categories: Civil Rights, Immunity, Wrongful Death
J. Gibbons finds the trial court properly found defendant guilty of multiple counts of theft and larceny, having stolen cash, credit and debit cards from elderly gamers at the casino. The court did not err in allowing a juror to remain on the panel even after a statement was made by him indicating bias because the court took efforts to rehabilitate the juror, later finding him to be impartial. The rehabilitation efforts are not challenged. An incorrect jury instruction was given as to ���larceny-from-the-person��� charges and is remanded to strike and enter amended judgment. Affirmed in part. Reversed in part and remanded.
Court: Nebraska Court Of Appeals, Judge: Gibbons, Filed On: July 20, 2023, Case #: 83243-COA, Categories: Jury, Theft, Jury Instructions
J. Gibbons finds the trial court erroneously granted the inmate's motion for compassionate release. Even if an error in his jury instructions during his trial on murder-for-hire charges rendered his sentence erroneous, he cannot use that error, in conjunction with his serious health issues, as an end run around the proper avenue for his postconviction claim. Therefore, because he had already filed a habeas petition and been denied relief, the sentencing error cannot serve as the type of extraordinary and compelling reason for his early release. Reversed.
Court: 6th Circuit, Judge: Gibbons, Filed On: June 9, 2023, Case #: 22-2037, Categories: Habeas, Murder, Sentencing
J. Gibbons finds the lower court erroneously found for a town and county on a CBD shop's civil conspiracy claim arising from police raids and criminal charges that were eventually dropped. Evidence in the record would allow a reasonable jury to conclude the sheriff and other officials knew the products sold in the CBD stores and involved in the simultaneous raids were legal, which in turn made the operation illegitimate from the outset. Reversed.
Court: 6th Circuit, Judge: Gibbons, Filed On: May 16, 2023, Case #: 23-5106, Categories: Civil Rights, Malicious Prosecution