176 results for 'filedAt:"2023-11-30"'.
J. Herndon finds the trial court improperly denied the child's guardian's motion for a new trial. The guardian filed suit against the child's aunt and grandmother, the resident and owner of the home, respectively, where the child nearly drowned in a swimming pool with inadequate barriers. The trial court erroneously submitted a compound question of duty and breach to the jury, as duty is a question of law for the court. Reversed.
Court: Nevada Supreme Court, Judge: Herndon , Filed On: November 30, 2023, Case #: 84521, Categories: Tort, Negligence, Due Process
[Consolidated] J. Stiglich finds the trial court properly denied the developer's motion to set aside sanctions in its contract action against a gas station owner. The developer failed to comply with discovery requests and court orders for 3 years and it did not oppose or appeal but moved to set aside the sanctions based on an argument of excusable neglect arising from its lawyer's mental health issues. The trial court appropriately set forth case law factors involving relief for excusable neglect and properly found that orders of dismissal are not prospective within the meaning of the cited excusable neglect rule. Affirmed.
Court: Nevada Supreme Court, Judge: Stiglich , Filed On: November 30, 2023, Case #: 83640, Categories: Sanctions, Negligence, Contract
J. Stiglich finds the district court improperly denied the computer code owner's special anti-SLAPP motion to dismiss. An industrial software developer says that computer code in the owner's possession belongs to it, being that it purchased the originator company of the code after the owner had invested in the originator to purchase the license. The special motion to dismiss requires the court to focus on the owner's communications rather than the form of the claims and the district court applied an incorrect standard in evaluating the claims. The CEO has demonstrated that the claims are based on good faith communications connected with issues of public concern. Reversed.
Court: Nevada Supreme Court, Judge: Stiglich , Filed On: November 30, 2023, Case #: 84679, Categories: Anti-slapp, Contract, Technology
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J. Womack finds the trial court properly denied defendant's petition for leave to proceed in forma pauperis, for extraordinary writ, and to set aside and vacate his judgment on a guilty-plea conviction for sexual assault. Defendant's claims that his conviction resulted from a civil rights violation and his challenges to the sentencing go beyond the face of the judgment and do not implicate validity. His petition was also filed three years after entry of his guilty plea and is untimely. Affirmed.
Court: Arkansas Supreme Court, Judge: Womack , Filed On: November 30, 2023, Case #: CR-23-32, Categories: Habeas, Sex Offender
J. Womack finds the circuit court improperly denied the nursing center's motion to enforce arbitration and to compel class members to submit claims to arbitration. The court’s orders do not provide the rationale behind its decision, as required by the Arkansas Supreme Court's review of previous appeals, and the appeal cannot be properly reviewed. Due to the court’s failure to adhere to the court's instructions, the case is reassigned.
Court: Arkansas Supreme Court, Judge: Womack , Filed On: November 30, 2023, Case #: CV-23-340, Categories: Arbitration, Health Care, Class Action
J. Westbrook finds the district court properly entered judgment regarding a petition for judicial review of an administrative decision by the transportation authority. The charter bus company was cited and fined for improperly staging vehicles at casinos without a charter order. Though the charter service says the staging prohibition is federally preempted, this is incorrect since the prohibition is related to safety. The charter service has also failed to develop the record at the agency level. Affirmed.
Court: Nevada Court of Appeals, Judge: Westbrook , Filed On: November 30, 2023, Case #: 85007-COA, Categories: Transportation, Agency
J. Pham denies the plaintiff employee's motion for discovery sanctions in this lawsuit alleging sex discrimination, hostile work environment and retaliation under Title VII. The former employee seeks sanctions against the employer after surveillance video of an alleged incident with a coworker was not produced. Sanctions are not appropriate, however, because the defendant company had no duty to preserve the evidence at the time it allegedly erased the video pursuant to its video retention policy.
Court: USDC Western District of Tennessee , Judge: Pham, Filed On: November 30, 2023, Case #: 2:22cv2705, NOS: Employment - Civil Rights, Categories: Sanctions, Discovery, Employment Discrimination
J. Pritzker finds that the lower court properly convicted defendant of criminal mischief for damaging his girlfriend's vehicle during an argument because evidence indicated defendant caused about $2,000 in damage after punching the hood and passenger side of a car in a rage upon being asked to exit the vehicle. Affirmed.
Court: New York Appellate Divisions, Judge: Pritzker, Filed On: November 30, 2023, Case #: 113367, Categories: Evidence, Property Crimes
J. Clark finds that the lower court properly convicted defendant of predatory sexual assault against a child and endangering the welfare of a child for his conduct with a 6-year-old. Defendant sought to suppress statements in which he admitted to sexual contact with the girl on grounds that police had coerced the admissions, but he had not been subjected to hours of questioning or tactics otherwise constituting "emotional battering" designed to break him. Affirmed.
Court: New York Appellate Divisions, Judge: Clark, Filed On: November 30, 2023, Case #: 113540, Categories: Miranda, Sex Offender, Child Victims
J. Trotter finds that the lower court properly granted summary judgment to the city in this case arising from a citizen's use of residential property, which allegedly violated certain municipal code provisions. The city sought injunctive relief against the citizen, based on the alleged violations, and was eventually granted a permanent injunction, following multiple continuances. The citizen challenges the validity of the city's nuisance ordinance on appeal, but she failed to properly preserve the issue for review. Also, there was no error in the decision to deny her request for court-appointed counsel. Affirmed.
Court: Texas Courts of Appeals, Judge: Trotter, Filed On: November 30, 2023, Case #: 11-22-00209-CV, Categories: Civil Procedure, Municipal Law
J. Hall finds a marble countertop supplier liable for an employee’s unpaid regular and overtime compensation and wage statement violations and orders the supplier to pay $31,063 in unpaid overtime compensation, $8,104 in unpaid regular wages, plus liquidated damages, penalties, pre- and post-judgment interest, as well as attorney fees and costs. The supplier failed to present any witness testimony at trial to back up its claims that the litigant was an exempt, salaried manager.
Court: USDC Eastern District of New York, Judge: Hall, Filed On: November 30, 2023, Case #: 2:18cv6103, NOS: Fair Labor Standards Act - Labor, Categories: Damages, Attorney Fees, Labor
J. Mackey finds that the lower court improperly classified defendant a risk level three sex offender for sexual misconduct committed as a youthful offender since counsel failed to seek a downward departure. Meanwhile, the court failed to explain the decision, necessitating remittal with newly assigned counsel. Reversed.
Court: New York Appellate Divisions, Judge: Mackey, Filed On: November 30, 2023, Case #: 529568, Categories: Ineffective Assistance, Sex Offender
J. Fallon denies summary judgment to a fuel supplier domiciled in the United Kingdom on its request for a maritime lien of $296,000 against the charterer of a Liberian-flagged vessel for unpaid fuel costs. Even if the fuel was purchased by someone with apparent authority from the vessel, the issue of damages and the reasonability of fuel supplier’s calculations is “factually pregnant," which is best resolved at trial.
Court: USDC Eastern District of Louisiana , Judge: Fallon, Filed On: November 30, 2023, Case #: 2:23cv595, NOS: Marine - Contract, Categories: Evidence, Maritime, Business Expectancy
J. Reynolds Fitzgerald finds that the lower court properly convicted defendant of assault for repeatedly punching his former paramour's ex-boyfriend in the face after finding him naked in her bed. Defendant contends evidence did not support the verdict, but medical experts testified to the extent of the injuries, which included cheekbone, jawbone, and orbital fractures. Affirmed.
Court: New York Appellate Divisions, Judge: Reynolds Fitzgerald, Filed On: November 30, 2023, Case #: 113505, Categories: Evidence, Assault, Experts
J. Smith finds the trial court properly declined the hospital’s motion to dismiss a negligence suit brought by a mother whose newborn baby died while receiving care in the pediatric intensive care unit. The hospital asserts that it is entitled to governmental immunity because the mother failed to give timely notice of her intent to file suit as required under the Texas Tort Claims Act. The mother successfully alleges that the hospital had some awareness of her intent to file suit, thus making the denial of its motion correct. Affirmed.
Court: Texas Courts of Appeals, Judge: Smith, Filed On: November 30, 2023, Case #: 03-21-00575-CV, Categories: Government, Immunity, Negligence
J. Biggs denies Ford’s renewed motion for a directed verdict and motion for a new trial in a wrongful death dispute. The wife supports her claims that her husband’s exposure to the asbestos-containing products at issue while working as a tractor-trailer mechanic for 40 years contributed to his mesothelioma. Final judgment will be entered in favor of the wife, awarding her $275,000 in back pay plus prejudgment interest to the tune of nearly $67,000.
Court: USDC Middle District of North Carolina, Judge: Biggs, Filed On: November 30, 2023, Case #: 1:20cv98, NOS: Asbestos Personal Injury Product Liability - Torts - Personal Injury, Categories: Settlements, Damages, Asbestos
J. Ceresia finds that the lower court improperly dismissed claims in which a nursing home seeks immunity against negligence claims stemming from the death of a resident who contracted Covid-19 early in the pandemic. The nursing home was not rendered liable for past acts by the repeal of state emergency measures granting immunity to health care professionals providing treatment to Covid patients because retroactivity was not presumed or expressed in the legislation. Meanwhile, the decedent's records indicate she was closely monitored and that care had been provided on a good faith basis. Reversed.
Court: New York Appellate Divisions, Judge: Ceresia, Filed On: November 30, 2023, Case #: 535767, Categories: Tort, Immunity, Covid-19
Per curiam, the appellate division finds that attorney Priscilla Jennifer Triolo may be reinstated following her September 2022 suspension for failing to meet registration requirements because she demonstrated compliance with the suspension order and the requisite character to practice law.
Court: New York Appellate Divisions, Judge: Per curiam, Filed On: November 30, 2023, Case #: PM-270-23, Categories: Attorney Discipline
Per curiam, the appellate division finds that attorney Kelly Baumer Bryan may be reinstated following her January 2014 suspension for failing to meet registration requirements because she demonstrated compliance with the suspension order and the requisite character to practice law.
Court: New York Appellate Divisions, Judge: Per curiam, Filed On: November 30, 2023, Case #: PM-268-23, Categories: Attorney Discipline
Per curiam, the circuit finds that the district court improperly dismissed pro se discrimination claims brought after an employer failed to approve medical and religious exemptions to vaccination requirements. Dismissing the action for failure to prosecute was premature because the employee may not have understood that responsibility for service had been shifted to her when marshals could not initially accomplish such.
Court: 2nd Circuit, Judge: Per curiam, Filed On: November 30, 2023, Case #: 23-463-cv, Categories: Civil Procedure, Employment Discrimination
Per curiam, the appellate division finds that the lower court properly convicted defendant based on his guilty plea to committing burglary while on probation for a prior offense. Defendant subsequently secured time in a drug treatment program, but he continued to violate its terms and was sentenced to prison as a second felony offender. Affirmed.
Court: New York Appellate Divisions, Judge: Per curiam, Filed On: November 30, 2023, Case #: 112731, Categories: Burglary, Probation, Sentencing
J. Garcia finds that the lower court properly denied the school bus defendants' motion to transfer venue in this product liability lawsuit arising from a fatal accident "allegedly caused by a defective school bus." There was no error in denying the motion, as "a substantial part of the events or omissions giving rise to the claim occurred in Dallas County," specifically involving the sale of the bus. Affirmed.
Court: Texas Courts of Appeals, Judge: Garcia, Filed On: November 30, 2023, Case #: 05-23-00775-CV, Categories: Product Liability, Venue
J. Wesley finds that the district court properly held that a mutual fund violated the Investment Company Act by amending bylaws to discourage activist investors. The amendment limited shareholders who possessed more than 10% of any closed-end investment fund to vote on the purchase of additional shares, while the Act requires equal voting rights for every share of common stock. Affirmed.
Court: 2nd Circuit, Judge: Wesley, Filed On: November 30, 2023, Case #: 22-407, Categories: Securities
J. Russell affirms the commission's decision to dismiss the network provider's petition for a declaratory judgment for lack of subject matter jurisdiction. The provider sought compensation from a private construction company that worked with the Virginia Department of Transportation's expansion of a road that required the relocation of four of the provider's facilities located in public rights-of-way. The origin of this claim is the contract between the provider and VDOT, which the commission and court are barred from reviewing.
Court: Virginia Supreme Court, Judge: Russle, Filed On: November 30, 2023, Case #: 230400 , Categories: Construction, Agency, Contract
J. Soto remands to lower court several cases, including this one, stemming from arrests of migrants for criminal trespass under Texas’ “Operation Lone Star,” a state policy ostensibly intended to “deter[] illegal border crossing” and “prevent criminal activity along the border.” Defendant argued the charge was unconstitutional, including because the state was “selectively prosecuting men, and not similarly situated women.” Following a favorable ruling from the Fourth Court of Appeals in a similar case, defendants facing such charges are entitled to reconsideration.
Court: Texas Courts of Appeals, Judge: Soto, Filed On: November 30, 2023, Case #: 08-23-00200-CR, Categories: Constitution, Immigration, Trespass