Per curiam, the appellate division finds that that lower court properly denied the man's petition to be deemed a member of the NYC Employees' Retirement System based on his work for 54 days in 1997 as a provisional assistant engineer. The man never applied for membership in the pension system, and cannot not seek retroactive membership. Affirmed.
Court: New York Appellate Divisions, Judge: Per curiam, Filed On: April 24, 2024, Case #: 02198, Categories: Pensions, Labor / Unions
J. Osteen denies a retired businessman’s motion for preliminary injunction against the U.S. Department of Agriculture to prevent it from enforcing the Horse Protection Act against him. The department claims the businessman violated the Act when he entered his own horse into a Virginia horse show when the horse was sored, or exposed to harmful chemicals in order to make the horse produce a more desirable gait. The businessman denies that he sored the horse and contests the process by which he was accused. Because one of the department’s judicial officers, and not its secretary, filed the complaint against the businessman, he incorrectly believes this delegitimizes the process and demands a jury trial. He is not likely to succeed on the merits and his motion is therefore denied.
Court: USDC Middle District of North Carolina, Judge: Osteen, Filed On: April 24, 2024, Case #: 1:24cv175, NOS: Other Statutory Actions - Other Suits, Categories: Agriculture, Constitution, Injunction
J. Higginson finds the district court properly found the owner of the unpowered drillship to be liable for the ship's moorage breakaway during Hurrican Harvey. Maritime negligence law, rather than a "towage law," was appropriately applied in the court's holding the force majeure contract defense was not available to the ship owner in relation to the tugboat owner hired to tend to the ship during the storm. The tugboat owner also had expressly refused to agree to the terms of the agreement for provision of services. Because the tugboat owner had supplied another vessel to monitor the ship after the breakaway, and that tug failed to stop the vessel’s allision with a University of Texas pier, the court correctly found both owners were equally liable for damages suffered by the school. Affirmed.
Court: 5th Circuit, Judge: Higginson , Filed On: April 24, 2024, Case #: 23-40209, Categories: Maritime, Damages, Negligence
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J. Smith finds that the trial court properly and improperly ruled in a breach of fiduciary duty case filed by the co-owner of a corporation against an attorney who represented the corporation in litigation. The co-owners alleged in their complaint that the attorney failed to inform the corporation's board of directors of a possible conflict of interest and aided another owner of the corporation in starting a competing firm. Nothing in the evidence establishes a relationship between the co-owner and the attorney. However, remaining questions on the award of attorney fees in this litigation still exist and should be adjudicated. Affirmed in part.
Court: Texas Courts of Appeals, Judge: Smith, Filed On: April 24, 2024, Case #: 03-22-00234-CV, Categories: Corporations, Fiduciary Duty, Attorney Fees
J. Baker finds that the trial court improperly ruled against an interior design firm that a design communications company sued for breach of a promissory note. The design firm argues that genuine fact issues remain on their counterclaims, specifically, an affidavit purporting to challenge the notion that there was a joint venture between the entities, entitling the communications company to a promissory note from the design firm. The trial court did indeed err in excluding the affidavit. Furthermore, the company is not entitled to summary judgment on the firm's breach of fiduciary duty claims while these fact issues exist. Reversed.
Court: Texas Courts of Appeals, Judge: Baker, Filed On: April 24, 2024, Case #: 03-22-00451-CV, Categories: Corporations, Evidence, Fiduciary Duty
J. Wilson finds that defendant was properly convicted and sentenced to life without parole for the murder of a 17-year-old in a drive-by shooting after the teenager allegedly shorted a purchase of Xanax by a group of defendant's friends. Defendant asserts that the state did not prove his guilt beyond a reasonable doubt regarding his specific intent, but the state presented witnesses that placed defendant and his friends in the drive-by shooting, and his testimony shows he felt provoked to kill or help to kill the teenager in retaliation for the failed drug buy. Affirmed.
Court: Louisiana Court Of Appeal, Judge: Wilson, Filed On: April 24, 2024, Case #: KA-23-414, Categories: Evidence, Intent, Murder
J. Mooney finds the trial court properly granted an industrial property seller's motion for directed verdict in a case involving an active underground storage tank. The buyer “had actual knowledge of the existence and location of the UST prior to the purchase.” Affirmed.
Court: Oregon Court of Appeals, Judge: Mooney, Filed On: April 24, 2024, Case #: A178469, Categories: Property
J. Mooney rejects petitioner’s appeal of his overall post-prison supervision term. “Petitioner presents no authority that would allow us to address a proportionality challenge in this context.” Affirmed.
Court: Oregon Court of Appeals, Judge: Mooney, Filed On: April 24, 2024, Case #: A180327, Categories: Sentencing
J. Hixson finds the circuit court properly terminated the parents' rights to their children based on sufficient evidence. The department was granted a petition for emergency custody and dependency-neglect after the mother tested positive for multiple drugs when giving birth. It then found each parent to be in partial and minimal compliance with the original case plan for reunification. Though certain evidence shows the parents were bonded with the children, the bond is not sufficient to prevent termination. Affirmed.
Court: Arkansas Court Of Appeals, Judge: Hixson , Filed On: April 24, 2024, Case #: CV-23-785, Categories: Evidence, Family Law, Guardianship
J. Erickson finds a lower court properly dismissed a case manager and a corrections employee's motion for qualified immunity concerning an inmate's Eighth Amendment claims. The case manager and the corrections employee argued that they did not act with deliberate indifference when they deprived him from obtaining toothpaste. However, the inmate sufficiently showed in court that he used his money from an inmate account to buy toothpaste, and suffered tooth decay as a result of not receiving it. Affirmed.
Court: 8th Circuit, Judge: Erickson, Filed On: April 24, 2024, Case #: 22-3617, Categories: Civil Rights, Constitution, Immunity
J. McKeown grants the National Labor Relations Board’s application for enforcement of its order directing Starbucks in Seattle to cease and desist from failing and refusing to recognize and bargain with a union. The Board held that by refusing to recognize and bargain with the union, Starbucks engaged in unfair labor practices. Starbucks refused to recognize and bargain with the union, claiming that the regional director should have ordered an in-person election instead of a mail-in vote. The Board correctly applied its own law in determining that the regional director appropriately exercised its discretion to hold a mail-ballot election. The certification of the union’s representative was proper, and the Board correctly found that Starbucks committed a violation by refusing to bargain.
Court: 9th Circuit, Judge: McKeown, Filed On: April 24, 2024, Case #: 22-1969, Categories: Employment, Labor / Unions
J. Moeller finds that the district court properly held that a Department of Water Resources enforcement action was not barred by a two-year limitations period. The period began to run when the department's director became aware that a landowner had not completed the streambank restoration required by a consent order. The landowner was involved in ongoing negotiations with the department over his compliance, so the director would have first known he did not plan to comply when he sought declaratory relief. Affirmed.
Court: Idaho Supreme Court, Judge: Moeller, Filed On: April 24, 2024, Case #: 50273, Categories: Environment, Water
J. Gruber finds the circuit court properly granted summary judgment in favor of the brother. The brother's survivorship agreement with his mother transferred her interest in the real property at issue to him upon her death. The other brothers challenged the mother's will, with the circuit court ruling that it was the product of undue influence, setting it aside and imposing a constructive trust on the property in favor of the estate. The court then granted summary judgment, concluding that relitigation was barred by the doctrines of law of the case and res judicata. The brother's cross-appeal for sanctions on the basis that this appeal is frivolous is denied. Affirmed on direct and cross-appeal.
Court: Arkansas Court Of Appeals, Judge: Gruber , Filed On: April 24, 2024, Case #: CV-22-188, Categories: Sanctions, Trusts, Wills / Probate
J. Wood finds the trial court properly convicted defendant, by guilty plea, for domestic battery and terroristic threatening. Defendant's suspended imposition of sentence was revoked for his failure to pay fines, costs, and fees, and for his repeated rape of a minor child, impregnating her. He was then sentenced to 22 years in prison. Witness and victim testimony, as well as DNA testing, support the conviction for rape. Defendant was originally sentenced to 120 months’ SIS for the terroristic-threatening offense, which exceeded the six-year maximum sentence allowed for a Class D felony. This matter is remanded to correct the sentencing orders. Affirmed.
Court: Arkansas Court Of Appeals, Judge: Wood , Filed On: April 24, 2024, Case #: CR-23-496, Categories: Sex Offender, Threats, Battery
J. Murphy finds the circuit court properly upheld the denial of the firefighter's claim for duty disability retirement. The firefighter sought treatment and therapy for PTSD, being placed on medical leave, before pursuing retirement benefits. A doctor's report stated that the available information did not support total and permanent disability. The firefighter provides no convincing support for his claim that the board of trustees disregarded facts. Substantial evidence supports the board’s decision. Affirmed.
Court: Arkansas Court Of Appeals, Judge: Murphy , Filed On: April 24, 2024, Case #: CV-22-650, Categories: Employment, Health Care, Workers' Compensation
J. Gladwin dismisses the farm’s appeal of the circuit court’s denial of its petition to discharge the excavator’s lien. The excavator filed the lien for $671,431 for nonpayment after the farm sold its property during a construction project it contracted for with the excavator. The excavator gave proper notice and the court correctly denied discharge of the lien, retaining jurisdiction. The farm filed a notice of interlocutory appeal and a motion to reconsider on the same day. The circuit court did not issue a ruling on the motion to reconsider. The appeals court has no jurisdiction for lack of a final order.
Court: Arkansas Court Of Appeals, Judge: Gladwin , Filed On: April 24, 2024, Case #: CV-22-608, Categories: Construction, Jurisdiction, Contract
J. Sannes preserves claims for failure to intervene against two Syracuse police officers stemming from the alleged used of excessive force during the arrest of two local residents, finding material disputes remain as to whether either officer had the opportunity to intervene during the incident. The court however enters judgment in favor of one of the officers on failure to intervene and excessive force claims for actions that took place while transporting the litigants in an ambulance to a local hospital following the arrest, finding he was not involved in any use of force during that time.
Court: USDC Northern District of New York, Judge: Sannes, Filed On: April 24, 2024, Case #: 5:19cv995, NOS: Other Civil Rights - Civil Rights, Categories: Energy, Tort, Police Misconduct
J. Merchant dismisses a Middle Eastern employee’s retaliation claims against a Brooklyn health care provider, finding that filing complaint she made against her supervisor, for forcing her to work near an employee who tested positive for Covid-19, is not protected activity for purposes of a retaliation claim. The court however preserves her discrimination claims, finding she provides enough detail to allege she faced differential treatment because of her national origin.
Court: USDC Eastern District of New York, Judge: Merchant, Filed On: April 24, 2024, Case #: 1:23cv3313, NOS: Employment - Civil Rights, Categories: Covid-19, Employment Discrimination, Employment Retaliation
J. Riley finds that the trial court properly held defendant in contempt and ordered her to serve 90 days in jail for lying three times in court about the existence and death of a child who did not exist, as the lies made it impossible for child services to determine if the child was real. Affirmed.
Court: Indiana Court Of Appeals, Judge: Riley, Filed On: April 24, 2024, Case #: 23A-JM-2671, Categories: Contempt, Family Law
J. Segal finds that the trial court should have granted an employer's motion to vacate a renewal of judgment for interest on an attorney fee award. Following a reversal that added to a previous attorney fee award in favor of an employee, the employee's attorneys sought interest from the time of the original trial court denial of fees. But because the appellate decision was not a modification, the interest on the fee award began to accrue when the appeals court reversed. Reversed.
Court: California Courts Of Appeal, Judge: Segal, Filed On: April 24, 2024, Case #: B327821, Categories: Civil Procedure, Employment, Attorney Fees