29 results for 'judge:"Clement"'.
J. Clement upholds the trial court’s decision granting summary judgment in favor of the city in this personal injury case brought by a resident alleging he was injured after slipping and falling off the city-owned pool’s diving board. The city claimed immunity from liability under the Tennessee Recreational Use Statute as an affirmative defense. The resident and his wife did not imply any exceptions or limitations for their negligence claims under the statute. Swimming and diving are a recreational activity, and the city pool is considered “land” or “premises” under the statute. Therefore, the city is entitled to immunity as a matter of law. Affirmed.
Court: Tennessee Court of Appeals, Judge: Clement, Filed On: May 14, 2024, Case #: M2023-00654-COA-R3-CV, Categories: Evidence, Immunity, Premises Liability
J. Clement finds the lower court properly confirmed a report by commissoners who were appointed to divide a decedent’s property into three separate parcels for her family. They assigned 32.4 acres to decedent’s son, 17.8 acres to her husband and 18.1 acres to her daughter. Her husband and daughter filed exceptions to the decision, but all parties agreed to have one of the commissioners testify as to the division of the property. The commissioner explained that the son was allotted more land because portions of the acreage were not usable due to terrain and easements but that the parcels were equal in fair market value. The husband and daughter argue there is insufficient evidence of the value of the properties, so the lower court should not have confirmed the commissioners’ report. No error was found in the lower court’s decision. Affirmed.
Court: Tennessee Court of Appeals, Judge: Clement, Filed On: April 26, 2024, Case #: E2022-01447-COA-R3-CV, Categories: Real Estate, Wills / Probate
J. Clement finds the lower court improperly vacated a decision by the Board of Fire and Building Code Appeals of the Metropolitan Government of Nashville and Davidson County (the Board), regarding a landowner’s proposal to build an auto repair shop on undeveloped land. The land did not have a water source that would satisfy fire code requirements, so the landowner sought a variance and submitted a proposal to construct a 20,000 gallon tank on the property along with a dry fire suppression system inside the building, but the Board rejected it over concerns for the safety of people and firefighters. The lower court found the Board failed to distinguish the request for a variance from an appeal, vacated the Board’s finding and remanded the matter for further consideration. The instant court disagrees with the lower court’s findings and remands the matter to have the Board’s ruling reinstated. Reversed.
Court: Tennessee Court of Appeals, Judge: Clement, Filed On: April 11, 2024, Case #: M2023-00113-COA-R3-CV, Categories: Construction, Municipal Law, Zoning
J. Clement finds the lower court properly dismissed this matter concerning the transfer of business ownership. The parties are two of four members of a LLC. Two of the members sold their membership interest to a third member, giving him three-fourths ownership. The fourth member argues that the three-fourths owner was to transfer an interest portion of the sale to him, but instead transferred it to the three-fourths owner's his wife. The lower court finds that pursuant to the LLC Agreement, any claims concerning the LLC must be heard in Oconee County, Georgia, where the company is registered. Affirmed.
Court: Tennessee Court of Appeals, Judge: Clement, Filed On: April 5, 2024, Case #: M2022-01640-COA-R3-CV, Categories: Venue, Business Practices
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J. Clement finds the district court improperly denied the inmate relief on his constitutional claims of cruel and unusual punishment. The inmate claims prison conditions have limited his sleep, causing health issues. The district court found, among other things, the inmate failed to satisfy the subjective element of deliberate indifference. The court improperly applied the deliberate indifference standard, rather than the "‘reasonably related’ [to a legitimate penological purpose] standard" set forth in guiding case law. Reversed.
Court: 5th Circuit, Judge: Clement , Filed On: March 22, 2024, Case #: 22-40754, Categories: Constitution, Prisoners' Rights
J. Clement finds the district court properly approved a receiver’s proposed plan of distribution of assets from a scheme to defraud seniors by selling them precious metals at inflated prices. Though the nonparty attorney argues the receiver's valuation methodology fails to consider whether individual investors received compensation, the court still has significant discretion in determining how to distribute funds of equitable receiverships. The court, in such instances, is not required to follow a particular plan in ethically distributing the assets. Affirmed.
Court: 5th Circuit, Judge: Clement , Filed On: March 7, 2024, Case #: 23-10420, Categories: Fraud, Securities
J. Clement finds the district court improperly applied a sentencing enhancement for obstruction of justice after defendant pleaded guilty to child pornography possession when his wife discovered images on his phone and reported him. Defendant's wife later decided to defend him, and the enhancement was applied based on a conversation they had about a letter of support she was writing for his sentencing proceeding. A case cited by the government is distinguishable in that defendant coordinated with his wife, not a criminal counterpart, telling her to use her own words. No obstruction exists in defendant's answering his wife's questions about what he thought she should say. Vacated.
Court: 5th Circuit, Judge: Clement , Filed On: February 15, 2024, Case #: 23-50100, Categories: Sentencing, Obstruction, Child Pornography
J. Clement finds the district court improperly dismissed the Texas inmate's pro se complaint for failure to timely effect service. The complaint was filed against five Texas prison officers, alleging they had allowed the inmate to bleed out for 45 minutes before rendering aid after he had been stabbed nine times by another inmate. The inmate also claims the officers retaliated with excessive force for his filing of a grievance. The court improperly refused to allow defendant leave to proceed in forma pauperis, which prejudiced his chances of effecting service. Reversed.
Court: 5th Circuit, Judge: Clement , Filed On: February 6, 2024, Case #: 22-40731, Categories: Due Process, Police Misconduct, Prisoners' Rights
J. Clement finds the district court improperly certified the class action against State Farm. Vehicle owners seeking actual cash value, according to their insurance contracts, for totaled vehicles, disagree with the source used by State Farm to determine that amount. The source used by State Farm is one of many acceptable industry sources and the class cannot show a class-wide injury. Vacated.
Court: 5th Circuit, Judge: Clement , Filed On: December 22, 2023, Case #: 22-30126, Categories: Insurance, Vehicle, Class Action
J. Clement finds the Federal Trade Commission improperly determined the DNA sequencing platform manufacturer's acquisition of its wholly-owned subsidiary cancer research entity violated the Clayton Act and ordered the merger be undone. The commission applied an erroneous legal standard at the rebuttal stage of its analysis, holding the manufacturer to a rebuttal standard that was incompatible with the plain language of the Act, which only prohibits transactions that will substantially lessen competition. Vacated.
Court: 5th Circuit, Judge: Clement, Filed On: December 15, 2023, Case #: 23-60167, Categories: Administrative Law, Agency, Technology
J. Clement finds the district court improperly denied the officer's motion for summary judgment in a case where the suspect was fatally shot by the officer after fleeing from his vehicle. Bodycam video shows the suspect possessed a pistol with an extended clip and that he suspiciously concealed his right arm as he fled, objectively suggesting he was armed. This qualifies as a furtive gesture justifying deadly force. Affirmed.
Court: 5th Circuit, Judge: Clement , Filed On: November 17, 2023, Case #: 22-40781, Categories: Constitution, Evidence, Police Misconduct
J. Clement dismisses the intervening environmental organizations' challenge to the district court's preliminary injunction, which prevents the Bureau of Ocean Energy and Management's removal of six million acres from an oil and gas lease sale, as well as its imposition of new limits on vessels over concerns of a survival risk to the endangered Rice’s whale. The intervenors have failed to show an injury is impending or likely to be redressed by a favorable decision by the Fifth Circuit.
Court: 5th Circuit, Judge: Clement , Filed On: November 14, 2023, Case #: 23-30666, Categories: Energy, Environment, Injunction
J. Clement finds the lower court properly terminated the parental rights of a mother to her two minor children. The children were removed from their mother’s care after she was arrested for intoxication, child abuse and child neglect, and were ultimately placed with a foster family. The mother continued to have issues with drug use and criminal activity, and was incarcerated at the time of the hearing. The lower court properly terminated the mother’s parental rights on grounds of abandonment by failure to provide a suitable home, substantial noncompliance with permanency plans, persistent conditions, failure to manifest an ability and willingness to assume custody, and that it is in the children’s best interests, but improperly terminated on grounds of abandonment by failure to visit and abandonment by failure to support, as evidence was insufficient to support the findings. Affirmed in part.
Court: Tennessee Court of Appeals, Judge: Clement, Filed On: November 1, 2023, Case #: E2023-00326-COA-R3-PT, Categories: Evidence, Family Law
J. Clement finds the district court improperly granted summary judgment to the Army as to the septuagenarian civilian doctor’s retaliation claims after he resigned during an investigation into his removal and replacement by a younger doctor as chief of surgery. The doctor has established a case for retaliation by alleging he was removed, had clinical privileges placed in abeyance, was reassigned to report to a younger supervisor and had his career threatened if he refused to resign. He has raised a genuine dispute of material fact as to whether he was subject to constructive discharge. The Army has demonstrated a legitimate, nondiscriminatory and non-pretextual reason for removing the doctor, and summary judgment is proper as the discrimination claims. Affirmed in part. Reversed in part and remanded.
Court: 5th Circuit, Judge: Clement, Filed On: October 24, 2023, Case #: 22-30756, Categories: Employment Discrimination, Military, Employment Retaliation
J. Clement finds the district court properly convicted defendant for conspiracy to transport illegal aliens. Defendant was a passenger in an SUV that was stopped for appearing “to be riding low” with a license plate light out. Nine Mexican nationals were found inside, and defendant admitted to being paid to help with their transportation. The government used the inadmissible criminal investigation report to prove that a person being transported was in the United States unlawfully, so the conviction for transporting is vacated. Affirmed in part. Vacated in part and remanded.
Court: 5th Circuit, Judge: Clement, Filed On: October 18, 2023, Case #: 21-50986, Categories: Conspiracy, Due Process, Human Trafficking
J. Clement finds the district court properly entered a default judgment and damages award in favor of the Danish software company in this suit alleging that its former employee stole highly specialized oil well and fluid dynamics simulation software product codes. During discovery, the employee destroyed electronic evidence in violation of court orders and the Federal Rules of Civil Procedure. The employee has also failed to produce evidence that he says would have changed the result. His motion for reconsideration was properly denied. Affirmed.
Court: 5th Circuit, Judge: Clement, Filed On: October 11, 2023, Case #: 22-20440, Categories: Energy, International Law, Technology
J. Clement finds the Administrative Law Judge properly upheld OSHA’s citing of the owner of a chicken rendering plant where two people were killed while unclogging a pressurized steam machine used to break down a digestible “poultry meal” used in pet food. A flange burst open while the workers attempted to release pressure buildup, spewing steam and hot material over the workers. The record shows that the owner failed to clearly and specifically outline rules regarding the control and release of hazardous energy. Substantial evidence supports the judge’s conclusion. Affirmed.
Court: 5th Circuit, Judge: Clement, Filed On: October 6, 2023, Case #: 22-60466, Categories: Employment, Agency, Wrongful Death
J. Clement finds the district court properly held that the Religious Land Use and Institutionalized Persons Act (RLUIPA) does not provide for money damages against officials sued in their individual capacities. The suit is brought by a Rastafarian whose head was shaved after being handcuffed to a chair by prison guards. RLUIPA, enacted to protect the religious rights of the incarcerated, does not permit suits against officers in their individual capacities. Affirmed.
Court: 5th Circuit, Judge: Clement , Filed On: September 14, 2023, Case #: 22-30686, Categories: Civil Rights, Prisoners' Rights
J. Clement finds the district court properly granted summary judgment to the staffing service in this suit brought by two women who were sexually assaulted and harassed by a lesbian senior coworker when placed with the oilfield services firm, Schlumberger. Schlumberger terminated one of the women after she complained and the other later resigned before filing suit; they have since settled with Schlumberger at mediation. The district court released the staffing service from the suit. The employees did not show that the staffing service should be held responsible for Schlumberger’s alleged misconduct. Affirmed.
Court: 5th Circuit, Judge: Clement, Filed On: August 25, 2023, Case #: 22-50502, Categories: Employment, Tort
J. Clement finds the district court properly dismissed the state prisoner’s civil rights complaint against the director of his faith-based dorm program, alleging that he conspired with a prison chaplain to retaliate against him for filing a complaint under the Prison Rape Elimination Act. The inmate believes he is owed money damages for not being released after his early parole hearing due to the officials’ alleged retaliatory actions. Such relief would imply the invalidity of his confinement, which renders the claim frivolous. Affirmed.
Court: 5th Circuit, Judge: Clement, Filed On: August 9, 2023, Case #: 22-10094, Categories: Civil Rights, Prisoners' Rights
J. Clement finds the trial court improperly convicted defendant for aiding and abetting a pair of armed robberies as the getaway driver. Two victims and two perpetrators were shot, and defendant drove a perpetrator to the hospital and was arrested when the vehicle was found to be stolen. Coercive interrogation techniques yielded involuntary statements and the court improperly overruled counsel’s objection to their being admitted. Defendant’s association with the shooters’ vehicle at the hospital is probative of guilt, but not sufficient to conclude beyond a reasonable doubt that a jury would have found him guilty absent the error. Reversed and remanded.
Court: Michigan Supreme Court, Judge: Clement, Filed On: July 31, 2023, Case #: 162497, Categories: Murder, Robbery, Accomplice Liability
J. Clement finds that a preexisting condition is not a bar to the receipt of workers’ compensation benefits in this suit brought by the nursing facility employee who fell off a ladder after being electrocuted while wiping off a light fixture with a damp rag. She returned to work after the hospital found no injury and her family doctor later diagnosed her with a concussion. Her condition has degenerated, resulting in seizures, mental health issues and an inability to work. She has admitted to repeated physical and emotional abuse by her first husband, and to being disowned by her mother, church community and friends who were unsupportive of the divorce. She also lost custody of her children. There is no evidence in the record that she had experienced seizures or took any time off work between her divorce and the workplace fall as a result of these past experiences. Cited legal tests conflict with the principle that a preexisting condition is not a bar to eligibility for workers’ compensation benefits. The magistrate’s findings are vacated. The Court of Appeals’ judgment is reversed and remanded.
Court: Michigan Supreme Court, Judge: Clement, Filed On: July 28, 2023, Case #: 163559, Categories: Employment, Health Care, Workers' Compensation
[Consolidated.] J. Clement finds the Court of Appeals improperly affirmed the trial court’s grant of summary judgment to the oil company in this premises liability suit brought by the customer who slipped and injured herself on the gas station’s snow-covered parking lot. Though the station owed the injured party a duty of care, genuine issues of material fact remain as to whether they breached that duty and, if so, whether there was comparative fault such that the damages must be reduced. Existing case law cited by the oil company regarding comparative fault is overruled. A determination of comparative fault may require consideration of the open and obvious nature of the hazard and the party’s choice to confront it. Reversed and remanded.
Court: Michigan Supreme Court, Judge: Clement, Filed On: July 28, 2023, Case #: 162907, Categories: Tort, Premises Liability
J. Clement finds the Court of Appeals improperly reversed the trial court’s dismissal of claims arising from the commission’s modification of a storm water drainage system, allegedly causing flooding onto the resort’s property. Though the sewage-disposal-system-event claim, which seeks relief only in connection with flooding that occurred within the three-year window, was timely, the commission is immune with respect to common law trespass-nuisance claims. This claim was properly dismissed at trial and injunctive relief for this sought by the resort is invalid. The trial court is affirmed in part and reversed in part and remanded. The Court of Appeals’ holding that the trespass-nuisance claim was timely is vacated as unnecessary.
Court: Michigan Supreme Court, Judge: Clement, Filed On: July 24, 2023, Case #: 163949, Categories: Municipal Law, Tort, Water
J. Clement finds that the district court properly ruled in favor of the city in this employment retaliation suit brought by the firefighter whose gallbladder surgery was plagued with complications. The firefighter was placed on probation after being caught asking another employee for leftover prescription painkillers. He then resigned and was accepted back after rescinding, though the department passed him over for promotions. The firefighter refused drug-testing, which led to his dismissal. The firefighter produces no evidence to show that the city's reasoning was false or pretextual. Affirmed.
Court: 5th Circuit, Judge: Clement , Filed On: July 24, 2023, Case #: 22-20380, Categories: Employment Discrimination
J. Clement finds the district court improperly granted the out-of-state student’s request for an injunction preventing the University of North Texas from charging out-of-state students more for tuition than in-state students and non-citizens who satisfy residency requirements. The relevant education code interpreted by the district court does not grant benefits to U.S. residents and non-citizens, but sets the tuition price for nonresident students, whether citizens or not. It does not determine whether illegal aliens are eligible for a cheaper price. The district court makes an erroneous reading of the code. Reversed and vacated.
Court: 5th Circuit, Judge: Clement, Filed On: July 10, 2023, Case #: 22-40225, Categories: Civil Rights, Education
J. Clement finds the lower court improperly denied an insurance company’s motion to dismiss. A vehicle hit a commercial building, causing damage. The building owners signed a release when they accepted $25,000 from the driver’s insurance company; they then filed a claim with their insurance company for damages. The insurance company notified them there was no coverage under the policy, as the owners essentially settled when they signed the release. By signing the release, the owners violated the terms of the policy, as it was done without the insurance company’s knowledge, and it terminated its ability to recover costs from the driver via subrogation. The instant court finds the building owners actions materially breached the policy, and the matter is remanded for dismissal of all claims against the insurance company. Reversed.
Court: Tennessee Court of Appeals, Judge: Clement, Filed On: July 5, 2023, Case #: W2022-01209-COA-R9-CV, Categories: Insurance, Property, Contract
J. Clement finds the trial court properly dismissed this suit brought by the animal feed manufacturer seeking insurance coverage for its illegal dumping of wastewater into Brandon, Mississippi’s public sewer system. The city’s suit is based on intentional conduct, whereas the insurance policy only covers accidents. Affirmed.
Court: 5th Circuit, Judge: Clement, Filed On: May 22, 2023, Case #: 22-60247, Categories: Insurance, Municipal Law, Water