J. Burroughs grants a debt collector’s motion for summary judgment against a debtor suing it for allegedly violating the Fair Debt Collection Practices Act, the Massachusetts Consumer Protection Act and the Fair Credit Reporting Act after the debtor refused to pay the debt under two credit card accounts. The debt collector did not make any false reports on the debt, fail to follow federal and state regulations regarding time and frequency of calls to the debtor and did not engage in an unconscionable debt collection practices.
Court: USDC Massachusetts, Judge: Burroughs, Filed On: May 7, 2024, Case #: 1:22cv10931, NOS: Consumer Credit - Other Suits, Categories: Debt Collection, Consumer Law
J. Welch finds the county court properly granted injunctive relief and damages to the property developer. The residential property owner constructed a sediment pond and dam, causing drainage issues on the developer's property. The developer has shown that it has lost use of a portion of its property, as well as having lost trees to erosion caused by pooling water. The water backup was caused by negligent construction, as shown by the testimony of a civil engineer. Removal of the pond and dam is the only remedy. Affirmed.
Court: Nebraska Court Of Appeals, Judge: Welch , Filed On: May 7, 2024, Case #: A-23-114, Categories: Agriculture, Property, Damages
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J. Welch finds the trial court properly convicted defendant, a psychiatrist, for third-degree sexual assault. The victims - his patients - testified to inappropriate touching, groping and kissing, with certain testimony corroborating other testimony. Evidence in a presentence report is not subject to admissibility standards used at trial and the court’s review of the report would not make a reasonable person question the judge’s impartiality. The motion to recuse is without merit and counsel cannot be found ineffective for failing to make a meritless argument. Affirmed.
Court: Nebraska Court Of Appeals, Judge: Welch , Filed On: May 7, 2024, Case #: A-23-577, Categories: Evidence, Judiciary, Sex Offender
J. Pirtle finds the trial court properly convicted defendant for operating a motor vehicle to avoid arrest. Officers conducting surveillance on a home saw defendant drive by and, while following him, defendant began driving at excessive speeds and making sudden turns. Pursuit was ended for safety concerns and officers identified defendant through vehicle registration records and his prior booking photos. Sufficient evidence supports the conviction, and all factors were properly considered in sentencing him to two years in prison, as well as a license suspension. Affirmed.
Court: Nebraska Court Of Appeals, Judge: Pirtle , Filed On: May 7, 2024, Case #: A-23-721, Categories: Drug Offender, Escape, Vehicle
J. Sands partially grants the police sergeant's and deputy's motion to dismiss a civil rights and negligence action brought by the individual after he was told he would be arrested for trespassing if he continued holding a sign outside the Georgia Department of Economic Development reading "God Bless Homeless Veterans." The individual improperly used sheriff's deputies from the same sheriff's office as the sergeant and deputy to serve them. The individual is ordered to timely serve the officers within 21 days.
Court: USDC Middle District of Georgia, Judge: Sands, Filed On: May 7, 2024, Case #: 7:23cv120, NOS: Other Civil Rights - Civil Rights, Categories: Civil Procedure, Civil Rights
Per curiam, the circuit finds the district court improperly dismissed the insurer's petition to appoint an umpire for lack of subject matter jurisdiction. The company refused to pay an additional $349,000 after paying the hail-damaged property owner $61,000 after deductions. The court erroneously concluded the petition did not meet the amount-in-controversy requirement for diversity jurisdiction. The company's petition establishes an amount in controversy of more than $75,000, meeting requirements for diversity jurisdiction. Reversed.
Court: 5th Circuit, Judge: Per curiam, Filed On: May 7, 2024, Case #: 23-10888, Categories: Insurance, Property, Jurisdiction
Per curiam, the Supreme Court of Ohio finds attorney Jack Herchel VanBibber will be suspended from the practice of law for two years for multiple criminal convictions stemming from traffic violations, his failure to comply with court orders related to those convictions and his refusal to cooperate with the ensuing disciplinary investigation. VanBibber continued to drive on a suspended license even after an OVI conviction, led police on a chase through a residential area after being pulled over and showed little respect to disciplinary proceedings when he refused to cooperate initially. However, because he has an otherwise clean disciplinary record, his suspension will be stayed so long as he commits no further misconduct.
Court: Ohio Supreme Court, Judge: Per curiam, Filed On: May 7, 2024, Case #: 2024-Ohio-1702, Categories: Sanctions, Attorney Discipline
J. White finds the circuit court improperly entered a judgment in the widow's favor after a jury's verdict finding Pabst liable for $6,986,906 in damages stemming from the widow's husband's death from mesothelioma he contracted from asbestos he encountered working as a pipefitter at Pabst and other locations. In her cross-appeal, the widow correctly argues that the circuit court improperly applied the punitive damages statute such that only Pabst's portion of compensatory damages was doubled, not the total amount of compensatory damages she was awarded. All of Pabst's arguments against the judgment and verdict fail, including those challenging the sufficiency of the evidence and the jury instructions. The case is remanded for the circuit court to enter a new judgment against Pabst totaling $13,419,295. Affirmed in part.
Court: Wisconsin Court of Appeals, Judge: White, Filed On: May 7, 2024, Case #: 2022AP000723, Categories: Damages, Negligence, Asbestos
J. Ortiz finds a lower court erred when it reduced the child support obligations of an ex-husband following a divorce. The court based the reduction on supplementary security income benefits received by the couple’s disabled adult child, but these benefits are not an “independent financial resource” that can “justify a reduction in a parent’s child-support obligation.” Reversed.
Court: Virginia Court Of Appeals, Judge: Ortiz, Filed On: May 7, 2024, Case #: 0877-22-2, Categories: Family Law, Social Security, Guardianship
J. Hardin-Tammons finds that the lower court properly denied defendant's motion for post-conviction relief alleging his counsel was ineffective for failing to call an independent DNA expert and an independent pharmacological expert. In light of the overwhelming evidence of defendant's guilty, he cannot show he suffered any prejudice as a result of counsel's alleged failures. Further, defendant's proposed pharmacological testimony about the consequences of mixing Paxil and alcohol would not have provided defendant with a viable defense. Affirmed.
Court: Missouri Court Of Appeals, Judge: Hardin-Tammons, Filed On: May 7, 2024, Case #: ED111372, Categories: Dna, Evidence, Sex Offender
J. Sessions denies a construction and excavation business, and its board members motion to dismiss in this Fair Labor Standards Act dispute brought by the Department of Labor alleging unlawful retaliation against employees that received back wages from a settlement. The employees alleges that the board members made false and retaliatory statements on the social media platform Facebook. The DoL plausibly alleged the conduct was a retaliation threat based on coercion making it plausibly unprotected. Discovery may proceed and the Labor Department’s motion to amend is also denied.
Court: USDC Vermont, Judge: Sessions, Filed On: May 7, 2024, Case #: 2:23cv560, NOS: Fair Labor Standards Act - Labor, Categories: Employment Retaliation, Labor
Per curiam, the Seventh Circuit finds that the lower court properly determined defendant is not entitled to a reduced sentence under the First Step Act. Defendant was convicted in 1998 of engaging in a continuing criminal enterprise (CCE) by managing the drug-trafficking operation of the Latin Kings street gang in Chicago and sentenced to life in prison. CCE convictions are not covered offenses under the Act because the statutory penalties of 20 years to life were not altered by the Fair Sentencing Act. Affirmed.
Court: 7th Circuit, Judge: Per curiam, Filed On: May 7, 2024, Case #: 23-1318, Categories: Drug Offender, Sentencing, Gangs
J. Kirsch finds that the lower court properly found for the insurer in a dispute over insurance coverage for the non-responsible parties of an auto accident. These parties cannot recover as assignees of the insured, because the the assignment's covenant not to execute the judgment against the insured personally rendered the insured not legally responsible, therefore triggering no responsibility on the part of the insurer. Affirmed.
Court: 7th Circuit, Judge: Kirsch, Filed On: May 7, 2024, Case #: 23-1299, Categories: Insurance, Contract
J. Jackson finds that the trial court was within its discretion to require that insureds who sought attorney fees in a bad faith insurance action waive their attorney-client privilege to allow discovery of invoices, fee agreements and payment history. Under Brandt, the recovery of insureds' attorney fees as an element of their damages is an election that requires them to provide discovery, and seeking recovery of attorney fees is an implied waiver of privilege.
Court: California Courts Of Appeal, Judge: Jackson, Filed On: May 7, 2024, Case #: A169321, Categories: Insurance, Privilege, Attorney Fees
J. Johnson denies, in part, a diagnostics company and its owner’s motion to dismiss or, alternatively, transfer venue in this contract dispute stemming from two unpaid loan agreements. The lender alleges breach of contract, breach of guaranty and unjust enrichment claims, he does state a plausible claim on the contract and guaranty. The unjust enrichment claim is dismissed because the parties have disputed the existence of an enforceable loan agreement. The lender may continue with all other claims with the court retaining jurisdiction over the proceedings.
Court: USDC Northern District of Alabama , Judge: Johnson, Filed On: May 7, 2024, Case #: 5:23cv1421, NOS: Other Contract - Contract, Categories: Banking / Lending, Contract
J. Murphy finds the lower court properly denied defendant's motion for resentencing under the First Step Act because his drug trafficking crimes involved an intent to distribute over 500 grams of crack cocaine, well in excess of the 280 grams required to trigger a life sentence under the 2018 revised version of the Act. Affirmed.
Court: 6th Circuit, Judge: Murphy, Filed On: May 7, 2024, Case #: 21-3753, Categories: Drug Offender, Sentencing
J. Wilson finds the trial court erroneously admitted the entirety of defendant's initial interview with police into the record. The officer who interviewed him never stopped asking questions about the hit-and-run accident after defendant requested an attorney and the two took a short break. However, there was overwhelming evidence to prove defendant struck a child and left the scene of the accident, including identifications by the victim's mother and a neighbor, as well a defendant's admission he knew he struck a child, not a dog; therefore, the error was harmless. Affirmed.
Court: Mississippi Court Of Appeals, Judge: Wilson, Filed On: May 7, 2024, Case #: 2022-KA-1235, Categories: Evidence, Vehicular Homicide
J. Schroeder remands this zoning dispute in which a group of property owners claim that the rezoning of a nearby lot in order to build a school violates their Second Amendment rights and state laws. The owners allege that based on state law, they would not be permitted to carry firearms on a private lane — which is their only entrance and exit to a public road — that divides the rezoned property. The parties request the court to use supplemental jurisdiction because, they argue, the state claims are similar enough to the Second Amendment claim that it is warranted. However, because the court does not have original jurisdiction over any of the claims, it cannot use supplemental jurisdiction and the claims must be remanded for a lack of subject matter jurisdiction.
Court: USDC Middle District of North Carolina, Judge: Schroeder, Filed On: May 7, 2024, Case #: 1:23cv797, NOS: Other Civil Rights - Civil Rights, Categories: Property, Zoning, Jurisdiction
J. Poissant finds that the trial court improperly granted no-evidence summary judgment in a dispute over ownership of title to a property. The land company's deeds and affidavits raised a fact issue as to whether it has superior title to the property. Reversed.
Court: Texas Courts of Appeals, Judge: Poissant, Filed On: May 7, 2024, Case #: 14-23-00004-CV, Categories: Evidence, Property