156 results for 'filedAt:"2023-10-04"'.
Per curiam, the appellate division finds that the lower court improperly denied the condo board president's motion to dismiss a purchaser's claim that the board intentionally refused to provide her with a written waiver of its right of first refusal to purchase the unit so that the purchaser could obtain financing. The complaint failed to state a cause of action for tortious inference with contract. Reversed.
Court: New York Appellate Divisions, Judge: Per curiam, Filed On: October 4, 2023, Case #: 04956, Categories: Real Estate, Contract
J. Ervin-Knott finds that the trial court improperly allocated 65% fault to a police officer and 35% fault to the mother of a minor bicyclist after a collision between the police car and the bicyclist. The allocation to the mother was made without a determination of negligence on the part of the bicyclist. Under jurisprudence, the bicyclist, as an eight year old, can be found to be contributorily negligent. Further, the mother should not have been awarded $10,000 for witnessing the bicyclist's severe injuries and pain because she does not meet the temporal proximity requirement since she arrived at the collision scene after the bicyclist was in the ambulance. Reversed in part.
Court: Louisiana Court Of Appeal, Judge: Ervin-Knott, Filed On: October 4, 2023, Case #: 2023-CA-0084, Categories: Evidence, Negligence
J. Lettow confirms the parties' agreed upon claim construction related to patents for security monitoring systems used in airports and other locations considered to be secure by the government.
Court: Court of Federal Claims, Judge: Lettow, Filed On: October 4, 2023, Case #: 15-501C, Categories: Patent
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J. Chehardy finds that the trial court properly found for a company after a visitor to a property fell into a pond, injured her vertebrae and died from her injuries. In this case, the decedent's family does not show that there was a "hidden danger" in the form of a quicksand-like substance under the "murky water" of the pond. The pond while under construction was open and obvious and did not constitute an unreasonably dangerous condition. Affirmed.
Court: Louisiana Court Of Appeal, Judge: Chehardy, Filed On: October 4, 2023, Case #: 22-CA-598, Categories: Evidence, Negligence, Wrongful Death
J. Kamins finds the trial court properly denied defendant’s motion for judgment of acquittal on the menacing charge against his 78-year-old grandmother. “A person in the position of defendant’s grandmother would have feared imminent serious physical injury.” Affirmed.
Court: Oregon Court of Appeals, Judge: Kamins, Filed On: October 4, 2023, Case #: A177782, Categories: Menacing, Elder Abuse
J. Gladwin finds the circuit court properly granted summary judgment to the parents regarding the grandmother’s application for visitation rights. The parents sent the grandmother a message stating that they thought her husband was grooming the child for sex and the grandmother refused to comply with the parents’ requested rules regarding this. Evidence establishes that the grandmother’s relationship with the child would continue if she would cooperate, and she has failed to show that visitation was “altogether denied.” On the grandmother’s cross-appeal requesting reversal of an earlier order for an extension of time for the mother to file the record on appeal, the court of appeals also affirms. Affirmed on direct and cross appeals.
Court: Arkansas Court Of Appeals, Judge: Gladwin, Filed On: October 4, 2023, Case #: CV-22-260, Categories: Evidence, Family Law, Guardianship
J. Jacquot finds the juvenile court erred by declaring subject matter jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). “Because Oregon was not [the child’s] home state on the date of the commencement of the proceeding…Oregon does not have home-state jurisdiction.” Vacated.
Court: Oregon Court of Appeals, Judge: Jacquot, Filed On: October 4, 2023, Case #: A179157, Categories: Family Law, Jurisdiction
J. Kamins finds the trial court properly admitted testimony describing a three-year-old sexual abuse victim’s statements to his parents and to a physician during a medical examination conducted shortly after the sexual abuse. The child’s statements to the doctor “were duplicative of and corroborated by his identical statements to his parents, who described the statements at trial without objection.” Affirmed.
Court: Oregon Court of Appeals, Judge: Kamins, Filed On: October 4, 2023, Case #: A177244, Categories: Evidence, Sex Offender, Child Victims
J. Allen grants Veterans Affairs’ motion to dismiss this appeal from the Army veteran’s claims for compensation for an aneurysm, service connection for depression, kidney failure and residuals of a stroke. The veteran sought to have the court hold that a 2020 notice of disagreement was timely, and the board provided that relief. On Sept. 7, 2023, the Board acted on the appeal and the only substantive issue, of whether the veteran’s VA Form 10182 was timely, has been fully resolved. The appeal is dismissed as moot; and there are no exceptions to mootness based on appellant’s pending request for class certification that would support a proceeding to address the merits.
Court: Court Of Appeals For Veterans Claims, Judge: Allen, Filed On: October 4, 2023, Case #: 20-2365, Categories: Health Care, Veterans, Class Action
J. Doyle finds the probate court improperly ruled that the neighbors are entitled to a private way over the individual's property in a dispute which arose after the individual allegedly blocked the neighbors from using a shared driveway. The neighbors failed to establish the elements of a prescriptive easement under the statute. The evidence showed that the use of the shared driveway was permissive. Reversed.
Court: Georgia Court of Appeals, Judge: Doyle, Filed On: October 4, 2023, Case #: A23A0909, Categories: Property
J. Auld denies a former Duke University Medical Center doctor’s second motion to compel discovery pursuant to ERISA to recoup long-term disability benefits under his insurance plan. The doctor requests discovery of information he believes the company has withheld. However, the company has repeatedly provided all information requested and, so, will not be tasked with providing more.
Court: USDC Middle District of North Carolina, Judge: Auld, Filed On: October 4, 2023, Case #: 1:22cv605, NOS: Employee Retirement Income Security Act (ERISA) - Labor, Categories: Erisa, Insurance, Contract
J. Winmill grants in part an employee's motion to exclude expert testimony in an employment dispute. The employee alleges that her employer sexually harassed her then retaliated against her for complaining. The Licensed Clinical Professional Counselor shall not be permitted to reference the employee's sexual history, behaviors or activities. However, the expert may testify regarding the employee's own statements about having no "sexual problems" in her medical records. A second counselor who briefly treated the employee "may not offer a causation opinion that is outside the context of her treatment and diagnosis of" the employee.
Court: USDC Idaho, Judge: Winmill, Filed On: October 4, 2023, Case #: 4:19cv287, NOS: Employment - Civil Rights, Categories: Employment, Employment Discrimination, Employment Retaliation
J. Winmill grants a medical equipment manufacturer's motion to dismiss a hospital's allegations that a machine that detects prostate cancer malfunctioned, giving incorrect results for some patients. The hospital seeks to recoup medical expenses it paid for patients whose results were incorrect. The hospital has not shown the existence of any contract terms beyond the agreement to purchase the machine or shown how the company breached the contract. The hospital has not provided facts to allege whether the machine malfunctioned or was defectively installed. The hospital is granted leave to amend.
Court: USDC Idaho, Judge: Winmill, Filed On: October 4, 2023, Case #: 3:22cv382, NOS: Contract Product Liability - Contract, Categories: Negligence, Product Liability, Contract
J. Shah partially grants the Chicago Transit Authority’s motion to dismiss one of its employees’ disability discrimination and retaliation claims against it. The employee took two weeks’ short term disability leave in 2021 in order to recover from the latest in a long line of injuries he has suffered on the job as a mechanic, and also filed for workers’ compensation. A year later, the transit authority fired him. While the employee claims this was retaliation, the court finds he has not sufficiently alleged that claim. His failure to accommodate and disparate treatment claims under the Americans with Disability Act stand.
Court: USDC Northern District of Illinois, Judge: Shah, Filed On: October 4, 2023, Case #: 1:23cv1387, NOS: Family and Medical Leave Act - Labor, Categories: Ada / Rehabilitation Act, Employment Discrimination, Employment Retaliation
J. Newey finds a lower court properly ruled in favor of a liquidated hotel portfolio on fraud and fiduciary duty claims against two hotel developers. The hotel developers argued that they are not obligated to pay equitable compensation to a lender liquidator. However, although the hotel portfolio did not suffer equitable loss, it is still entitled to compensation from the hotel developers based on their gain of fraudulent profits. Affirmed.
Court: Her Majesty's Court of Appeal, Judge: Newey, Filed On: October 4, 2023, Case #: CA-2022-1487, Categories: Fraud, Fiduciary Duty, Banking / Lending
J. Wilson finds that the trial court properly ruled in favor of the homeowners in a breach of contract suit over the insurer's mishandling of hurricane damages claims. Evidence supports the finding that the insurer's payments were not timely, and its argument that the jury was incorrectly instructed was not preserved for review. Affirmed.
Court: Louisiana Court Of Appeal, Judge: Wilson, Filed On: October 4, 2023, Case #: CA-22-634, Categories: Insurance, Jury, Contract
J. Thierry finds that the trial court improperly terminated the father's parental rights to his daughter and granted an intrafamily adoption in favor of the maternal grandmother and step grandfather. The father's failure to visit or communicate with his daughter was due to a protective order that prohibited him from contacting her, and this constitutes just cause for not communicating with her. Thus, the father's consent to the adoption was required in this case. Reversed.
Court: Louisiana Court Of Appeal, Judge: Thierry, Filed On: October 4, 2023, Case #: JAC-23-248, Categories: Family Law
J. Lobree finds the trial court improperly entered a final judgment in favor of the insured in her dispute with the insurance company regarding coverage of a claim over water damages to her house. The trial court incorrectly denied the company's motion in limine to block from evidence the homeowner's replacement-cost estimate of the damages and instead limit evidence on damages to actual cash value, which resulted in the homeowner not bringing evidence of the correct estimate of damages. The trial court's order is overturned and the case is remanded for a new trial. Reversed.
Court: Florida Courts Of Appeal, Judge: Lobree, Filed On: October 4, 2023, Case #: 20-0367, Categories: Evidence, Insurance, Contract
J. Lindsey finds the trial court properly ruled in favor of the county property appraiser in a lawsuit from two homeowners over the denial of their request to transfer a property tax assessment benefit from their old home to their new home. Because the record shows the homeowners did not transfer the benefit within the statutory two-year time limit, and because a 2020 constitutional amendment extending the time limit from two to three years does not retroactively control in the dispute over the homeowners' 2019 request, the trial court correctly considered their request untimely and granted final judgment to the appraiser. Affirmed.
Court: Florida Courts Of Appeal, Judge: Lindsey, Filed On: October 4, 2023, Case #: 22-0949, Categories: Government, Property, Tax
J. Virden finds the trial court properly entered a change of custody order as to the divorced parties’ older minor daughter, and awarding custody of the younger daughter to the father. The trial court analyzed the custody arrangements under different standards, finding the living arrangements had significantly changed due to the father’s relocation. The mother failed to rebut the presumption that the relocation is in the older child’s best interest. The father testified that he had been convicted of sexual assault before the parties married. Though the mother asks the court of appeals to simply reverse and grant her custody, this court cannot act as a fact-finding body, and must reverse and remand for a specific finding on whether father posed no danger. Affirmed in part. Reversed in part and remanded.
Court: Arkansas Court Of Appeals, Judge: Virden, Filed On: October 4, 2023, Case #: CV-22-382, Categories: Evidence, Family Law, Guardianship
J. Lobrano finds that the Office of Workers' Compensation properly dismissed a professor's claim against the university arising out of a slip and fall injury. In this case, the professor did not testify that he injured his neck or shoulders when he fell, only that he suffered a chemical burn on his face from the formaldehyde that he slipped on. The professor did not introduce any medical records or bills to support his claim. Affirmed.
Court: Louisiana Court Of Appeal, Judge: Lobrano, Filed On: October 4, 2023, Case #: 2023-CA-0053, Categories: Evidence, Tort, Workers' Compensation
J. Johnson finds that the trial court properly sustained the peremptory exception of peremption and dismissed the homeowner's claim against a construction company for not properly elevating her home. In this case, the homeowner did not accept the work performed, but did not file her action within five years after moving back into the home in 2013. Affirmed.
Court: Louisiana Court Of Appeal, Judge: Johnson, Filed On: October 4, 2023, Case #: 22-CA-585, Categories: Construction, Contract