J. Heavican finds the court of appeals properly affirmed defendant’s conviction for possession of a firearm by a prohibited person, refuting his claims of ineffective assistance. After defendant was arrested pursuant to a drug deal-involved shooting, a witness testified that defendant “carries a Glock 9 with an extended clip everywhere he goes.” Though counsel failed to object to this propensity evidence, it is cumulative of other testimony to which defendant does not assign error and is therefore harmless. Affirmed.
Court: Nebraska Supreme Court, Judge: Heavican, Filed On: May 19, 2023, Case #: S-21-1036, Categories: Drug Offender, Evidence, Firearms
J. Mikva finds that the Board improperly fired a courtroom deputy for his conduct during an incident where a female detainee was sexually assaulted in the courthouse bathroom by two male detainees. The sheriff never presented evidence that the sexual assault actually occurred, only that the detainees were in the restroom cell together. Further, there is no basis for finding that the deputy placed the male detainees in the bathroom, as the only testimony describes the deputy who did so as a white man, but the deputy is Black. Reversed.
Court: Illinois Appellate Court, Judge: Mikva, Filed On: May 19, 2023, Case #: 220320, Categories: Employment
Per curiam, the Fifth Circuit finds the lower court properly adhered to the prior Fifth Circuit panel’s mandate affirming in part the district court’s judgment in favor of the excavating company on its breach of contract claim regarding dirt removal from a construction worksite. Though the construction company says that it was not required to pay $81,000 in materials and labor because the excavating company stopped performing before the work was completed, its prior breach and delay-causing failure to manage the site excused the failure to perform. Any changes in the damages sought do not prevent the excavating company from obtaining proper fees. Affirmed.
Court: 5th Circuit, Judge: Per curiam, Filed On: May 19, 2023, Case #: 21-40629, Categories: Construction, Attorney Fees, Contract
J. Caldwell finds that a stepfather was improperly permitted to adopt his stepson because the lower court did not utilize the constitutionally mandated clear and convincing evidence standard in terminating the biological father's parental rights.
Court: Kentucky Court Of Appeals, Judge: Caldwell, Filed On: May 19, 2023, Case #: 2022-CA-1055-ME, Categories: Family Law
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C.J. Bright finds the lower court properly adopted the fixture valuations presented by the department store's expert witness in the store's challenge to municipal taxes assessed against its personal property. The expert not only supported his testimony with relevant and certified calculations, the town was also able to cross-examine him to help establish its own valuations, which gave the court a full understanding of the tax values at issue prior to its decision. Affirmed.
Court: Connecticut Court Of Appeals, Judge: Bright, Filed On: May 19, 2023, Case #: AC45303, Categories: Property, Tax, Experts
J. Siler finds the lower court properly considered both objective and subjective evidence regarding the employee's disability when it determined she was qualified for long-term disability benefits. The circuit has found on several occasions that subjective evidence, including this employee's complaints of pain, can be considered alongside expert testimony to determine an employee's eligibility for benefits. Meanwhile, the employee's own testimony, alongside that of her treating physicians, was sufficient to establish her eligibility for long-term disability benefits because her ability to stand only for one hour of an eight-hour work day rendered her unable to perform sedentary work. Affirmed.
Court: 6th Circuit, Judge: Siler, Filed On: May 19, 2023, Case #: 21-4178, Categories: Employment, Erisa, Evidence
Per curiam, the Fifth Circuit finds the Board of Immigration Appeals improperly dismissed the appeal of an immigration judge’s denial of the petitioner’s motion to rescind an in-absentia removal order. After entering the United States without a valid visa, permit’ or border crossing card, the Mexican citizen was sent a Notice To Appear (NTA) at a removal hearing. The notice stated that the date and time were “to be calendared and notice provided by … the immigration judge.” The NTA was defective as it did not contain the date and time of the proceedings. Under relevant case law, an immigration judge may not issue an in-absentia order of removal when the NTA did not contain all the required information. Vacated and remanded. Petition for review granted.
Court: 5th Circuit, Judge: Per curiam, Filed On: May 19, 2023, Case #: 21-60195, Categories: Immigration, Due Process
J. Blacklock finds the court of appeals properly ruled in favor of a school district in a tax appraisal suit. The school district, on a contingent-fee basis, hired an attorney to bring its challenges against the appraisal district. The appraisal district argues that the fee agreement between the school district and the attorney is unlawful. While the school district was not permitted to enter into the contingent-fee agreement, dismissal of the suit would also be improper. The school district has the authority to challenge the appraisal district, and it should be given the opportunity to alter the agreement with the attorney or hire a new attorney on different terms. Affirmed.
Court: Texas Supreme Court, Judge: Blacklock, Filed On: May 19, 2023, Case #: 22-0313, Categories: Civil Procedure, Government, Tax
Per curiam, the appeals court finds the state does not at this time have the legal authority to subpoena the petitioners for their medical records because it has not filed any civil or criminal action against them, nor any other motion or pleading. The petitioners' petition for a writ of prohibition blocking a hearing on the state's bid to compel production of the medical records is granted without prejudice so the clerk can assign a case number and the lower court can begin normal proceedings with evidence and arguments.
Court: Florida Courts Of Appeal, Judge: Per curiam, Filed On: May 19, 2023, Case #: 22-2462, Categories: Jurisdiction, Discovery
[Consolidated.] Per curiam, the court of appeals finds that the appellate division properly held that a 2014 law seeking to limit town elected officials to eight consecutive years in office was invalid because the law had not gone to a referendum of town voters. Affirmed.
Court: New York Court Of Appeals, Judge: Per curiam, Filed On: May 19, 2023, Case #: 56, Categories: Elections, Municipal Law
Vice Chancellor Cook finds that shares of a company had not vested under the terms of the separation agreements because the performance condition had not been met before the transaction was closed.
Court: Delaware Chancery Court, Judge: Cook , Filed On: May 19, 2023, Case #: 2020-0955-NAC, Categories: Contract
J. May finds that the lower court properly declined to suppress a handgun and ammunition discovered on defendant in his robbery trial because defendant openly told the arresting officer he had a gun, and evidence indicated defendant committed the robbery. Affirmed.
Court: Indiana Court Of Appeals, Judge: May, Filed On: May 19, 2023, Case #: 22A-CR-1107, Categories: Evidence, Robbery
J. Alston grants the technology company's motion for an injunction to bar the Navy from accessing, disclosing, or otherwise using the database schema for any purpose other than the normal use of the technology company's software. Naval employees uploaded the private software used to run diagnostics on aircraft carriers onto public websites in violation of the company's copyright rights.
Court: USDC Eastern District of Virginia, Judge: Alston , Filed On: May 19, 2023, Case #: 1:23cv478, NOS: Other Statutory Actions - Other Suits, Categories: Administrative Law, Military, Injunction
J. Wollenberg finds a trial court may not toll the “speedy trial clock” over defendant’s objection. “Alaska Criminal Rule 45(d)(2) requires the consent of both defense counsel and the defendant in order to exclude from the speedy trial calculation the period of delay attributable to a defense request for a continuance.”
Court: Alaska Court Of Appeals, Judge: Wollenberg, Filed On: May 19, 2023, Case #: A-13508, Categories: Speedy Trial
J. Cradle finds the lower court properly dismissed the inmate's petition for a writ of habeas corpus. His ineffective assistance of counsel claims related to DNA evidence obtained from tissues did not prove any prejudicial error, given the tissues were unconnected to the assault for which he was convicted and did not bolster his theory of mistaken identity. Affirmed.
Court: Connecticut Court Of Appeals, Judge: Cradle, Filed On: May 19, 2023, Case #: AC44979, Categories: Dna, Habeas, Ineffective Assistance
J. Waples finds that the lower court properly extended and modified stalking orders against an individual relating to his harassing activities on a vacant lot that he directed towards his neighbors. The evidence supports the finding that an extension of the order was necessary and that the individual should be prohibited from discharging a firearm on the lot. Affirmed.
Court: Vermont Supreme Court, Judge: Waples, Filed On: May 19, 2023, Case #: 22-AP-143, Categories: Civil Procedure, Emotional Distress, Restraining Order
[Consolidated.] J. Fridy grants these petitions for writs of mandamus, in which the relators challenge the transfer of their respective cases to juvenile court. The circuit court had jurisdiction over the two actions, which both involve the adjudication of paternity. Accordingly, they are entitled to mandamus relief.
Court: Alabama Court of Civil Appeals, Judge: Fridy, Filed On: May 19, 2023, Case #: CL-2023-0225, Categories: Civil Procedure, Family Law
J. Lambert finds the trial court improperly denied the county's motion to dismiss a lawsuit involving a contract dispute with a construction company over the building of a fire station. The trial court's order was "a departure from the essential requirements of the law" because the terms of the parties' contract holds that administrative dispute resolution procedures must be exhausted before any lawsuits can be filed. Because those procedures have not been exhausted, the county's petition for writ of certiorari is granted and the order denying its motion to dismiss is quashed.
Court: Florida Courts Of Appeal, Judge: Lambert, Filed On: May 19, 2023, Case #: 22-2883, Categories: Tort, Contract
J. Wilson finds the lower court properly convicted defendant of two counts of the sale of .5 grams or more of methamphetamine within 1,000 feet of a school zone and one count of the sale of .5 grams or more of methamphetamine. Though defendant argues he should have been sentenced under an amended 2020 sentencing guideline, he committed the crimes in 2018 and the proper sentencing guidelines were applied. Evidence is sufficient to support defendant’s convictions and sentence to three 12-year terms to be served concurrently. Affirmed.
Court: Tennessee Court of Criminal Appeals, Judge: Wilson, Filed On: May 19, 2023, Case #: M2021-01342-CCA-R3-CD, Categories: Drug Offender, Evidence, Sentencing
J. Ross dismisses for failure to state a claim the elderly Iranian homeowners’ due process, conspiracy and equal protection claims alleging a two-year-long campaign of harassment on the part of a local zoning enforcement officer stemming from their efforts to remove dead or dying trees on or near their property on the basis of their ages and national origins. They had alleged they were forced to leave their property and sell it at a reduced value due to various zoning violations filed against the property.
Court: USDC Eastern District of New York, Judge: Ross, Filed On: May 19, 2023, Case #: 2:22cv4047, NOS: Other Civil Rights - Civil Rights, Categories: Zoning, Due Process, Equal Protection