J. Funke finds the district court improperly entered a declaratory judgment and permanent injunction in favor of the livestock company in this dispute over cattle brand inspection statute interpretation. Cattle moved into registered feedlots from their point of origin, with no other movements, avoid brand inspection. Cattle moved from their point of origin to “backgrounding” lots for calf weight and immunity build up before going to a feedlot do not avoid brand inspection. Reversed. Injunction vacated and dismissed.
Court: Nebraska Supreme Court, Judge: Funke, Filed On: May 26, 2023, Case #: S-22-534, Categories: Administrative Law, Agriculture
J. Orme finds the Standings and Training Council properly suspended the corrections officer’s certification for 3.5 years due to his admission that he masturbated in a staff restroom while on duty at a Utah Department of Corrections prison. Case law guiding on questions of right to privacy, as cited by the officer, does not provide constitutional protection for private masturbation by a public employee at work. Affirmed.
Court: Utah Court Of Appeals, Judge: Orme, Filed On: May 26, 2023, Case #: 20210217-CA, Categories: Administrative Law, Civil Rights, Police Misconduct
J. Christensen finds in partial favor of the Forest Service Employees for Environmental Ethics’ in their lawsuit against the U.S. Forest Service for discharging aerially deployed fire retardant, on nearly 500 occasions between 2012 and 2019, into U.S. waters without a permit. The Forest Service is not enjoined from using aerial deployment of fire retardant to fight wildfires, but its discharges are still in violation of the Clean Water Act. The Forest Service is ordered to update the court every six months as it works towards obtaining the proper permit.
Court: USDC Montana, Judge: Christensen, Filed On: May 26, 2023, Case #: 9:22cv168, Categories: Environment, Water, Agency
Per curiam, the Nebraska Supreme Court accepts attorney Benjamin Maxell’s voluntary surrender of his law license and enters a judgment of disbarment. His license had been previously suspended for failure to report continuing legal education compliance. He failed to inform clients of this, then failed to deliver their file to them or other counsel. He stopped communicating with multiple clients and several grievances have been filed. He does not challenge the allegations, consents to disbarment and waives his right to notice, appearing or hearing.
Court: Nebraska Supreme Court, Judge: Per curiam, Filed On: May 26, 2023, Case #: S-22-195, Categories: Administrative Law, Attorney Discipline
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Per curiam, the appeals court finds the trial court properly determined defendant was given ineffective assistance of counsel in the form of legally incorrect advice which led him to reject a deal the state offered for a six-year prison term and instead proceed to trial, where he was found guilty and sentenced to 20 years. The remedy the lower court ordered granting defendant a new trial was incorrect, as Florida precedent holds that defendant should have at least been offered the same six-year deal he had previously been offered. The case is remanded for further proceedings taking into account the precedent and this opinion. Affirmed in part.
Court: Florida Courts Of Appeal, Judge: Per curiam, Filed On: May 26, 2023, Case #: 23-0054, Categories: Criminal Procedure, Ineffective Assistance, Conspiracy
J. Harris finds the trial court correctly denied the sand mine company's motion to dissolve a temporary injunction entered against it, but it incorrectly failed to follow Florida law and set an amount for bond funds agreed to by both parties to be held in case the company is found to have been wrongfully enjoined. The case is remanded back to the trial court to hold a hearing to figure out if the parties agreed to waive a bond or, if not, what a proper bond amount would be. Affirmed in part.
Court: Florida Courts Of Appeal, Judge: Harris, Filed On: May 26, 2023, Case #: 22-1201, Categories: Civil Procedure, Injunction
J. Lobrano finds that the district court properly granted the Housing Authority's exception of no right of action and dismissed a Housing Authority police officer's claims related to his termination. The officer's claim that his rights under the Police Officer’s Bill of Rights were violated for the Housing Authority not notifying him of the minimum standards guaranteed a police officer during an investigation does not state a claim because, under Smith, the officer does not have a right of action under the Police Officer’s Bill of Rights. Further, the officer does not have a right of action to raise classified civil service claims under statute. Affirmed in part.
Court: Louisiana Court Of Appeal, Judge: Lobrano, Filed On: May 26, 2023, Case #: 2022-CA-0729, Categories: Employment, Contract
J. Tunheim grants summary judgment to the employer in the employee's suit alleging that it failed to accommodate her disability, namely narcolepsy, and retaliated against her for seeking accommodations. The employer's refusal to allow the employee to "flex" her time was not a failure to accommodate because the employee did not request the greater flexibility in start times she says she did not receive. It also did not constitute retaliation, nor do the denial of requests for training or her resignation.
Court: USDC Minnesota, Judge: Tunheim, Filed On: May 26, 2023, Case #: 0:20cv1511, Categories: Ada / Rehabilitation Act, Employment, Employment Retaliation
[Consolidated.] J. Stargel finds that the trial court improperly denied the insurance parties' dismissal motions in a dispute over coverage for claims for emergency medical services provided to foreign patients. There was insufficient evidence showing the court had personal jurisdiction over the insurance parties. Reversed.
Court: Florida Courts Of Appeal, Judge: Stargel, Filed On: May 26, 2023, Case #: 6D23-301, Categories: Health Care, Insurance, Jurisdiction
J. Brown finds that the trial court improperly entered an order requiring defendant to pay $3,400 in restitution for damaging a truck after he pleaded guilty to criminal damage to property. The state failed to prove that the fair market value of the truck when it was damaged did not exceed the estimated cost to repair the damage. Vacated.
Court: Georgia Court of Appeals, Judge: Brown, Filed On: May 26, 2023, Case #: A23A0750, Categories: Restitution, Property Crimes
J. Hull finds the trial court properly denied the petitioner’s request for a writ of mandate seeking a manual recount of ballots that had been early “machine read,” by jurisdictions “having the necessary computer capability,” which the petitioner claims violate election code prohibiting accessing and releasing a vote count prior to the day of an election. Election code allows counties to begin scanning ballots on the 10th business day before the election. This is not a process of tabulation. The petitioner has failed to demonstrate any law violation. Other claims lack merit. Affirmed.
Court: California Courts Of Appeal, Judge: Hull, Filed On: May 26, 2023, Case #: C093916, Categories: Administrative Law, Elections, Technology
J. Friedland dismisses an appeal challenging the district court's denial of a motion from various organizations to intervene as defendants in a lawsuit against the Bureau of Land Management challenging the grant of two rights-of-way. The first concerned the right to use an existing natural gas pipeline and the second to use that pipeline to transport water across federal lands in California. While the appeal was pending, the district court held that the decision to grant the rights-of-way was arbitrary.
Court: 9th Circuit, Judge: Friedland, Filed On: May 26, 2023, Case #: 22-55317, Categories: Environment, Water
J. Orme finds the trial court properly found defendant guilty of protective order violations. The judgments were not against the clear weight of the evidence regarding these convictions. But the state did not present evidence of any act specified in the relevant charging documents as constituting stalking, apart from the protective order violation. Because stalking is predicated on a course of conduct comprising two or more acts, the evidence was necessarily insufficient. Affirmed in part. Reversed in part.
Court: Utah Court Of Appeals, Judge: Orme , Filed On: May 26, 2023, Case #: 20190339-CA, Categories: Evidence, Restraining Order
Per curiam, the Florida Sixth District Court of Appeals finds that the trial court improperly ruled in favor of the insurance company in a property damage claim dispute. Based on the language of the policy, the company is required to pay the "actual cash value" of the damage, and the company had the burden to prove the amount of depreciation. Reversed.
Court: Florida Courts Of Appeal, Judge: Per curiam, Filed On: May 26, 2023, Case #: 6D23-118, Categories: Insurance, Property, Contract
J. Luthy finds the district court improperly dismissed this suit brought by the purchaser of a defaulted loan. The district court denied the purchaser’s motion for summary judgment and invoked the loan’s original arbitration provision, concluded that it divested the court of jurisdiction. The existence of an arbitration provision does not divest a court of jurisdiction. Reversed and remanded.
Court: Utah Court Of Appeals, Judge: Luthy, Filed On: May 26, 2023, Case #: 20210581-CA, Categories: Arbitration, Jurisdiction, Banking / Lending
J. Funke finds the district court properly affirmed the conviction of the county sheriff for official misconduct by refusing to receive a prisoner into the county jail. The sheriff cites no authority for his theory that, absent a court order, he has inherent authority to decline to receive arrestees. Affirmed.
Court: Nebraska Supreme Court, Judge: Funke, Filed On: May 26, 2023, Case #: S-22-102, Categories: Administrative Law, Police Misconduct
J. Heytens finds the lower court improperly granted the government's motion to dismiss a suit seeking a refund for 2013 taxes after the taxpayer accidentally overpaid. The taxpayer plausibly alleges that his claim for a refund on his 2013 taxes was physically delivered to the IRS before the statutory deadline. Reversed.
Court: 4th Circuit, Judge: Heytens, Filed On: May 26, 2023, Case #: 22-1537, Categories: Government, Tax, Agency
J. Doyle finds that the trial court properly convicted defendant of child molestation offenses and correctly denied his motion for a new trial. The trial court did not commit any error by admitting the inconclusive DNA results of the victim's rectal swab into evidence. The DNA analyst's testimony about the DNA testing was relevant to understanding the lab report. Defendant failed to show that he was prejudiced by his trial counsel's allegedly deficient performance. Affirmed.
Court: Georgia Court of Appeals, Judge: Doyle, Filed On: May 26, 2023, Case #: A23A0484, Categories: Dna, Ineffective Assistance, Sex Offender
J. Nardacci grants preliminary approval of a class settlement agreement to resolve claims alleging a commercial bank based in Upstate New York assessed improper overdraft fees on customers’ transactions. Potential class members have until Aug. 24, 2023, to decide whether or not to opt out of the settlement, with the final approval hearing scheduled for Oct. 11, 2023.
Court: USDC Northern District of New York, Judge: Nardacci, Filed On: May 26, 2023, Case #: 1:22cv390, Categories: Settlements, Banking / Lending, Class Action
J. Futey allows a shuttle company to continue claims alleging beach of the implied covenant of good faith and fair dealing related to a contract to provide shuttle services because the company sufficiently pleaded facts supporting the claims.
Court: Court of Federal Claims, Judge: Futey, Filed On: May 26, 2023, Case #: 20-123C, Categories: Contract
J. Reiss denies a medical supplier's motion to dismiss the product purchaser's amended complaint alleging defamation and tortious interference with contract. The purchaser plausibly alleged the supplier acted maliciously and intentionally in submitting accusations of counterfeiting to Amazon and caused the suspension of its storefront. The supplier has failed to show that its statements were privileged as a matter of law.
Court: USDC Vermont, Judge: Reiss, Filed On: May 26, 2023, Case #: 2:21cv213, Categories: Health Care, Defamation, Interference With Contract
Per curiam, the Utah Court of Appeals finds the juvenile court properly terminated the mother’s parental rights. The record supports the statutory grounds and best interest findings for termination, and the mother does not challenge this. Instead, she says the court improperly found that she waived her right to counsel. Based on her lack of contact with counsel and her failure to meaningfully participate, the court permitted counsel to withdraw, then reappointed at the termination hearing at the mother's request. After several failures to appear and continued lack of participation, the court determined that mother waived her right to counsel. The record does not support the mother’s claim that counsel was deficient or that her right to counsel was improperly waived. Affirmed.
Court: Utah Court Of Appeals, Judge: Per curiam, Filed On: May 26, 2023, Case #: 20221129-CA, Categories: Family Law, Due Process, Guardianship
J. Tunheim denies the insurer's motion in its declaratory-judgment case against its insured to amend his partial summary judgment order to certify it for an interlocutory appeal. There is not substantial ground for a difference of opinion on how many deductibles the insured is responsible for, and the insurer has not shown that an appeal would materially advance the termination of litigation.
Court: USDC Minnesota, Judge: Tunheim, Filed On: May 26, 2023, Case #: 0:21cv2093, Categories: Insurance, Contract
