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Consider the following statement:
V. power auth. of the state of new york, 81 n.y.2d 649, 652, 602 n.y.s.2d 588, 621 n.e.2d 1195, 1196 (n.y.1993) (same). these cases teach that fair market value is not to be determined in a rarefied realm of abstract calculation, but from the perspective of a hypothetical buyer in the ... | E. holding that stigma damages were properly included in calculation of severance damages where proximity of gas pipeline could trigger fears about possible mishaps |
Consider the following statement:
Of § 3583(e)(3) was reasonably foreseeable and provided the defendant with a fair warning. thus, it was not unconstitutional to apply johnson retroactively. although seals is unpublished, and thus not binding, seals is authoritative and persuasive. therefore, applying johnson retroacti... | C. holding that rules setting forth time limits for a defendants motion for a new trial grounded on a reason other than newly discovered evidence are not jurisdictional but instead are nonjurisdictional claimprocessing rules |
Consider the following statement:
That it did not impact the outcome of the defendant’s case. see chapman v. california, 386 u.s. 18, 24, 87 s.ct. 824, 17 l.ed.2d 705 (1967); united states v. edwards, 224 f.3d 1216, 1223 (10th cir.2000) (quoting chapman, 386 u.s. at 24, 87 s.ct. 824). here, mr. salazar's statements to ... | E. holding that the admissibility of statements obtained after the person in custody has decided to remain silent depends under miranda on whether his right to cut off questioning was scrupulously honored and upholding officers attempts to resume questioning after defendant invoked right to remain silent because defen... |
Consider the following statement:
Until april 1998 the deadline for serious and severe nonattainment areas to submit their attainment demonstrations. see 64 fed.reg. at 70,398. because not all sips contain mvebs and because of the delay in the submission and approval of attainment demonstrations that do contain such bu... | E. recognizing that section 7506 does not dictate how conformity should be determined if no approved sip exists or if the approved sip contains no adequate motor vehicle emissions budget |
Consider the following statement:
Phillips, 807 so.2d at 718. based on blackshear, the gravity of appellant’s crimes, as well as the treatment of like juveniles, supports the imposition of appellant’s true life sentence premised on a solem factor analysis. as such, similar to the defendant in blackshear and based on th... | D. holding that the defendant lacked standing to challenge the death penalty based on the iccpr because treaties apply only to disputes between sovereign governments |
Consider the following statement:
Id. (internal quotations and citations omitted). as lopez acknowledges, we have previously determined that the supreme court’s decision in harmelin v. michigan, 501 u.s. 957, 994-95, 111 s.ct. 2680, 115 l.ed.2d 836 (1991) rejected the argument that a term of life imprisonment constitut... | E. holding that application of statutory mandatory minimum in 841b1a does not violate defendants fifth and fourteenth amendment rights |
Consider the following statement:
Chief judge. arnold ellis, the appellant, is serving a 12-year prison term as a result of his 1983 conviction for drug offenses. as part of his sentence, the court ordered him to pay a “stand committed” fine of $60,000. such a fine requires him to remain in prison (i.e., “stand committ... | D. holding that state may not imprison indigent defendant solely for inability to pay fine |
Consider the following statement:
For access services they admitted to ordering and receiving. plaintiffs now argue that the court erred in finding that “none of defendants subscribed to plaintiffs’ switched access services by submitting an access order as prescribed in the tariffs” and in failing to consider issues of... | E. holding that rule 59e applies to a motion to reconsider |
Consider the following statement:
Principles that allow for the formation of contracts without the signatures of the parties bound by them. see, eg., i.m.a., inc. v. rocky mountain airways, inc., 713 p.2d 882, 888 (colo.1987) (stating that the parties' agreement on essential terms of a contract as required to establish... | E. holding that a court may only enforce a settlement agreement if it constitutes an enforceable contract |
Consider the following statement:
(9th cir.1986)). notably, in their reply, petitioners argue that members of their proposed social group are “easily identified,” but they do not address at all the issue of the breadth of the proposed group. petitioners’ reply, pp. 18-19. as for their claim for withholding of removal, ... | C. holding that an applicant who fails to satisfy the lower standard of proof for asylum necessarily fails to satisfy the more stringent standard for withholding of removal |
Consider the following statement:
Marshals, and presenting the testimony of dr. ketroser. during closing argument, the defense spent substantial time discussing and attacking the reliability of the laboratory test results. the test results became a central and critical focus of the defense, which argued that if the sta... | C. holding that felonymurder rule applies whenever felony and homicide are parts of one continuous transaction and rejecting defendants argument that he should have been acquitted of felony murder because rape was afterthought to homicide and the autopsy did not disclose whether rape took place before or after death |
Consider the following statement:
That the veteran “may win or lose on the facts of her case without regard to the veterans court’s interpretation of [statute].... ” myore, 323 f.3d at 1352. that is to say, a failure to present sufficient evidence may have mooted the issue regardless of the veterans court’s interpretat... | D. holding that a remand is appealable only when the remand disposes of an important legal issue that would be effectively unreviewable at a later stage of litigation |
Consider the following statement:
Considered by the jury in its sentencing deliberations, this same evidence was also sufficient to authorize the jury to find beyond a reasonable doubt the existence of the statutory aggravating circumstances concerning the commission of rape during the murders. see berryhill v. state, ... | E. holding that the standard of review for the sufficiency of the evidence is the same as the standard for denying a motion for a directed verdict |
Consider the following statement:
Reference the maersk sealand bill of lading, which is available on maersk’s website. upon issuance of an initial receipt or booking document incorporating a bill of lading, the terms of the latter become part of the parties’ contract. see berkshire knitting mills v. moore-mccormack lin... | C. holding that bill of lading issued as to two containers was binding as to third container which was stolen and as to which no bill of lading issued provided that the bill of lading in evidence was the standard form bill of lading that carrier always used |
Consider the following statement:
Christi 1995, writ denied); see also gen. servs. comm’n v. little-tex insulation co., 39 s.w.3d 591, 598 (tex.2001) (sovereign immunity does not shield state from action for compensation under takings clause). rather, “[t]he constitution itself is ... a waiver of governmental immunity ... | C. holding that evidence was legally sufficient to support finding that government reservoir caused recurrent destructive flooding directly impacting ranch land |
Consider the following statement:
Forfeiture and to offer him a fair chance to present his claim of entitlement. see mullane, 339 u.s. at 314, 70 s.ct. 652. whether the notice actually given is or is not reasonable invariably depends on the circumstances of the individual case. see garcia v. meza, 235 f.3d 287, 291 (7t... | A. holding sufficient notice by certified mail to both home address and place of immurement |
Consider the following statement:
Urena, 162 s.w,3d at 551. there may be more than one proximate cause of an occurrence. del lago, 307 s.w.3d at 774. unlike a negligent activity' claim, a premises defect claim is not based on the defendant’s malfeasance, but on its non-feasance. id. at 776. that is, “a premises defect ... | C. holding that negligence in premises defect context generally means failure to use ordinary care to reduce or eliminate unreasonable risk of harm created by premises condition about which owner or occupier of land is aware |
Consider the following statement:
Principal was an experienced, self-employed businessman who had completed numerous large commercial real estate transactions, (1) admitted that the lender’s employees also had stated the proposal had to be presented to the loan committee, (2) knew the loan committee’s approval was a ne... | C. holding as a matter of law no justifiable reliance on statements like the deal is real and we will fund next week also observing statement loan was a done deal not sufficient to support claim for negligent misrepresentation |
Consider the following statement:
Of the state to bring the defendant into court to answer the charge brought against him.' ”) (quoting blackledge v. perry, 417 u.s. 21, 30, 94 s.ct. 2098, 2104, 40 l.ed.2d 628 (1974)). 13 . if the government were correct that x-citement video announced a new rule, this would provide an... | B. holding that the novelty of a petitioners claim can constitute cause for a procedural default |
Consider the following statement:
460, 463 (8th cir.2000) (“equitable tolling is proper only when extraordinary circumstances beyond a prisoner’s control make it impossible to file a petition on time.”), petition for cert. filed, — u.s.l.w. -, — u.s. -, — s.ct. -, — l.ed.2d - (u.s. june 11, 2001) (no. 00-10520). becaus... | B. holding that federal courts must defer to independent and adequate state procedural bars in reviewing 2254 petitions |
Consider the following statement:
States v. bowman, 634 f.3d 357, 360 (6th cir.2011) (published opinion) (internal quotation marks omitted). “but because plea agreements’ constitutional and supervisory implications raise concerns over and above those present in the traditional contract context, in interpreting such agr... | D. holding that as a matter of contract interpretation a plea agreement permitting a court to impose a restitution order beyond that authorized by statute might well be unenforceable on grounds of public policy and that the defendant is entitled to presume when she entered the plea agreement that the judge would order ... |
Consider the following statement:
That the admission of permanian’s statements violated the holding in bruton v. united states, 391 u.s. 123, 20 l. ed. 2d 476, 88 s. ct. 1620 (1968). in bruton, the supreme court held that the defendant was deprived of his rights under the confrontation clause of the sixth amendment whe... | E. holding that the confrontation clause of the sixth amendment is not violated by the admission of hearsay statements under the coconspirator exception to the hearsay rule where the defendant was able to confront and crossexamine the witness who claimed that the statements at issue were made |
Consider the following statement:
467 u.s. at 655, 104 s.ct. 2626. the court decided, however, that the danger to unsuspecting civilians sufficed to apply the exception. id. at 657, 104 s.ct. 2626; see also united states v. liddell, 517 f.3d 1007, 1008 (8th cir.2008) (applying exception when after defendant was removed... | E. holding that public safety issue remained notwithstanding that newton was handcuffed and in hallway outside his apartment because the unlocated gun presented a deadly risk to everyone on the premises |
Consider the following statement:
That defendant did not preserve the question whether the trial court should have imposed a lesser sanction and that, if he did, the trial court acted within its discretion in assessing the effect of defendant’s refusal to answer on the state’s right to test defendant’s testimony on cro... | C. recognizing that criminal defendants right to testify is subject to crossexamination |
Consider the following statement:
Of his bed. 3 . while some of these cases discuss procedural, rather than substantive, due process, they are relevant to the question of when liberty interests arise for incarcerated prisoners. 4 . grinter offered no allegations or argument in support of his claim that there was insuff... | B. holding that the plra requires total exhaustion where an entire action should be dismissed if one claim is not properly exhausted |
Consider the following statement:
People outside the state may have eaten at the plaintiffs employer was insufficient to prove that the restaurant prepared food for interstate commerce. see lamont v. frank soup bowl, inc., 2001 wl 521815, at * 2 (s.d.n.y. may 16, 2001) (“while it is true that people who live outside of... | B. holding that the plaintiffs were not covered by the flsa by virtue of the plaintiffs purchase of items at local stores using their employers credit card |
Consider the following statement:
Context, then, it is clear that the second circuit’s holding was that the discovery of the cocaine packets provided probable cause to continue holding valez, even after the arresting officer became aware of the intended suspect's arrest. 26 . with regard to the latter showing, plaintif... | A. holding that exclusionary rule does apply to civil forfeiture proceedings |
Consider the following statement:
Officers may be removed before the end of their statutorily defined term. see parsons v. united states, 167 u.s. 324, 339, 32 ct.cl. 626, 17 s.ct. 880, 42 l.ed. 185 (1897) (“[w]e must construe this act as providing absolutely for the expiration of the term of office at the end of four ... | D. holding that a statute should not be construed so as to invalidate other parts of the same statute |
Consider the following statement:
7(c) are categorically exempt from disclosure' unless disclosing such information is necessary in order to confirm or refute compelling evidence that the agency is engaged in-illegal activity.” see pinson, 202 f.supp.3d at 102, ecf no. 306 (quoting safecard servs., inc. v. sec, 926 f.2... | D. holding that names of private individuals appearing in files within the ambit of exemption 7c are categorically exempt from disclosure unless disclosing such information is necessary in order to confirm or refute compelling evidence that the agency is engaged in illegal activity |
Consider the following statement:
Would be future restrictions on his ability to reenter the united states, nor informed of any right to retain counsel. his counsel stated that the expedited removal order was invalid and improper inasmuch as shunaula had possessed a valid visa at the time of his 1997 entry. the ij conc... | D. holding ineligible for adjustment of status alien who was inadmissible due to reentry after prior removal |
Consider the following statement:
Practices. id. at 260. accepting the cities’ claims as true, the court finds that the cities have alleged a causal connection between monsanto’s distribution of pcbs and contamination of the bay. iii. the cities may bring public nuisance claims for damages. monsanto argues that the cit... | A. holding that where a city brought a public nuisance claim based on asbestos in its buildings it had essentially pleaded a products liability action not a nuisance action |
Consider the following statement:
Have no basis for evaluating this claim ... [whether the denial of the permit will] prevent economically viable uses ... or frustrate reasonable investment-backed expectations.” the court, however, held that the requirement by the corp of engineers that the landowner obtain a permit be... | B. holding that where a purchase of the parcel to facilitate mining was clearly a part of the investment backing for benefits expectations and where the diminution in value of whitney coal was total there was a taking |
Consider the following statement:
Administrator is not dispositive, it is certainly not irrelevant.” donovan v. mercer, 747 f.2d 304, 309 (5th cir.1984). the court in that case held the defendant, although not formally appointed a trustee, to be a fiduciary where she was “represented” in various documents as a trustee ... | E. holding that one who is named in documents as plan administrator signs documents as plan administrator and assumes discretionary authority in the administration of the pension plan is a fiduciary |
Consider the following statement:
States court of appeals for the federal circuit has clarified, however, that when a contract award is challenged, based on regulatory or procedural violation, “the disappointed bidder must show a clear and prejudicial violation of applicable statutes or regulations.” axiom res. mgmt. v... | D. holding that the trial court must determine whether the contracting agency provided a coherent and reasonable explanation of its exercise of discretion and the disappointed bidder bears a heavy burden of showing that the award decision had no rational basis |
Consider the following statement:
Advance, and because the notice plaintiff received did not specify that plaintiffs removal as an officer was to be considered, i find that the code of regulations has been violated. i do not find, however, that this violation amounts to a breach of the fiduciary duty by the individual ... | A. holding that the concept of fiduciary duty did not require general partners to notify ousted partner of his impending ouster and that absent explicit provisions in a partnership agreement requiring advance notice to a party being removed notice hearing or a showing of cause is not implicitly required |
Consider the following statement:
Referrals to specialists— the discrimination provision is sufficiently clear in apprising physicians that they may not provide firearm-owning patients with less medical care than they would other patients, in any circumstances. thus, the discrimination provision of the act is not vague... | B. holding a statute providing for administrative action against physicians who engage in speech that the patient believes to be a recommendation of marijuana lacks the requisite narrow specificity under the first amendment |
Consider the following statement:
Failed in determining whether it breached the contract. because “question 1” submitted only a single theory of liability and the trial court did not otherwise instruct the jury to consider erroneous matters, we conclude that the trial court did not err by submitting an invalid theory o... | A. holding that evidence of nonpayment of salary and writing of bad checks did not result in submission of unpled theories of fraud liability where evidence supported pled fraud claim based on nonpayment of loan |
Consider the following statement:
$30,027 instead of the $54,977 it originally found necessary. in the court's explanation of its calculations, it is not clear if this change was intentional. the court stated: "the court evaluated the evidence, including the photographs of the residence and found mr. sparks's evidence ... | C. holding that it is trial courts function to evaluate witness credibility and weigh conflicting evidence |
Consider the following statement:
The second controlled drug buy was merely to increase his sentence. turner’s sentencing entrapment claim is based on his self-proclaimed status as a small-time, “dime-bag” dealer who was not predisposed to sell the quantity of drugs requested by the informant. we dispatch first with tu... | B. recognizing sentencing manipulation as a viable defense |
Consider the following statement:
731-32 (citing washington v. texas, 388 u.s. 14, 87 s.ct. 1920, 18 l.ed.2d 1019). we observed in haverty that a trial court has the discretion under west virginia code § 57-5-2 to determine whether immunity should be extended to a particular witness based on a determination “that the e... | A. recognizing that an ordinary witness may decline to answer only after making the requisite showing of the danger of selfincrimination |
Consider the following statement:
Finding of fact by the wcj to sufficiently support the suspension of benefits. employer claims the suspension order is free from error. under section 422(a) of the act, a wcj must issue a “reasoned decision containing findings of fact and conclusions of law” which would enable the part... | B. holding the wcjs credibility determinations precluded any meaningful appellate review because the court had to imagine why the wcj made such credibility determinations |
Consider the following statement:
Thus, the question for a jury would be whether the state provided reasonable accommodations resulting in meaningful access for ms. jar-amillo, or denied her such access solely on the basis of her disability. for the same reasons discussed above with respect to ms. jaramillo’s equal pro... | D. holding that the ada requires fastfood restaurants to implement policies or procedures to effectively train their employees how to deal with disabled individuals but does not require a particular policy or procedure |
Consider the following statement:
Communications v. texas eastman co., 955 s.w.2d 269, 270 (tex.1997). when notice bears an incorrect address, it constitutes error on the face of the record. see mann, frankfort, stein & lipp, p.c. v. fleetwood management. corp, no. 01-9 ersal systems, inc., 961 s.w.2d 418, 419-20 (tex.... | B. holding dismissal for want of prosecution improper where notice of hearing was mailed to an address that was different from the most recent filings and the record and envelopes were returned undeliverable and noting that when the notice was returned undeliverable court personnel should have reexamined the file to de... |
Consider the following statement:
For the exercise of his judgment or discretion ... unless he is guilty of a willful or malicious wrong.” elwood v. county of rice, 423 n.w.2d 671, 677 (minn.1988) (quotation omitted). the purpose of the official-immunity doctrine is to protect public officials “from the fear of persona... | A. holding that officers release of police dog to assist in arrest was discretionary act |
Consider the following statement:
The tucker act, see higbie, 778 f.3d at 993. he ins ir. 1999); harris v. united states, 118 fed.cl. 180, 190 (2014) (ruling that claims under the seventh amendment are not properly brought in this court because the seventh amendment is not money-mandating) (citation omitted), recons, d... | E. holding that the equal protection and due process clauses of the fifth and fourteenth amendments do not provide a sufficient basis for jurisdiction because they do not mandate payment of money by the government |
Consider the following statement:
The other hand, the balance of incidents of ownership tips toward the party designated as lessor, then the document is a true lease.”). among the factors that courts employing the multiple-factor approach find indicative of a disguised security agreement are “net lease” terms — i.e., p... | D. holding that net lease provisions in agreement together with other factors establish that the transaction is a sale |
Consider the following statement:
By certain actions of the defendant. see hrpp rule 48(c). in the instant case, the circuit court did not calculate excludable periods because, given a starting date of october 28, 1996, any periods excludable under subsection (c) would not have brought the total number of days between ... | C. holding that the exclusion in rule 48c1 hrpp of periods of delay should be taken from the filing of the motion through the conclusion of the hearing on or other prompt disposition of the motion citation omitted |
Consider the following statement:
To civil in rem forfeiture matters whenever doing so did: (1) not conflict with any provision of the forfeiture act; and (2) facilitated the orderly, fair and efficient course of proceedings and disposition of the matter. in my view, those cases provided a practical approach to disposi... | E. holding discovery rules apply to civil forfeiture proceedings |
Consider the following statement:
By all accounts, the executed partnership agreement was the result of an arm’s length transaction. also, the partnership agreement specifically, allowed for the payment of developer fees, and several other provisions effectively established that dr. cravens .knew so. given dr. cravens’... | B. holding that party could not justifiably rely upon oral representations thatwere directly contradicted by terms of written agreement |
Consider the following statement:
Second, the court has concluded that the issues of fact are material, i.e. resolution of the issues might affect the outcome of the suit under governing law.’ ” lemoine v. new horizons ranch & ctr., inc., 174 f.3d 629, 633 (5th cir.1999) (quoting colston v. barnhart, 146 f.3d 282, 284 ... | E. recognizing that the copyright act was amended in 1976 to include computer programs in the definition of protectable literary works |
Consider the following statement:
One must also consider the doctrine set forth in national railroad passenger corp. v. morgan, 536 u.s. 101, 118, 122 s.ct. 2061, 153 l.ed.2d 106 (2002) which holds that a complaint alleging a hostile work environment will not be time barred if all acts constituting the claim are part o... | D. holding liability for claims under civil rights act of 1964 and remedial administrative procedures which emphasized going through channels providing no mechanism to female firefighter for airing grievances involving conduct of superiors who were in chain of command |
Consider the following statement:
As opposed to a summons, could be issued for the misdemeanor under either of the rule 7.1(b) exceptions. clearly, neither of these exceptions existed and the rule was violated. in deciding that officer davis could not have acted in good faith, we are guided by the language from our sup... | E. holding that police district attorney and judge are charged with knowledge of law particularly when dealing with constitutional rights |
Consider the following statement:
Executives, they were temporally remote from the decision to discharge appellants, and completely unrelated to the investigation regarding appellants’ violation of the ec policy. thus, the comments qualify as ‘stray remarks’ and are entitled to minimal weight.”); ezold v. wolf, block, ... | C. holding summary judgment for the employer was warranted because the only evidence in support of plaintiffs claims was solomons own testimony |
Consider the following statement:
Legal right to possess that property for a set period of time_”); def.’s reply ex. b at 4 (master lease art. ii ¶ 1 (providing that dallas “hereby leases and rents to lessee for lessee’s exclusive use, and lessee hereby agrees to hire and take, ... the premises”)). as the court of appe... | D. recognizing that just compensation was required by the fifth amendment in a ease where the federal government deprived a tenant which held a longterm lease of occupancy of portions of a leased building |
Consider the following statement:
Of trust relative to medicare. additionally, garrison did not-hold a position of discretion concerning her crime of false reporting to medicare, as required for application of the abuse-of-trust enhancement. as her counsel explained at sentencing, garrison lacked the discretion and abi... | D. holding that the section 3b13 enhancement was warranted because the ophthalmologist convicted for medicare fraud abused the trust implicit in a in a professional medical practice because of the essential trust between patient and physician and because the government as insurer depends upon the honesty of the doctor... |
Consider the following statement:
Lent for a statutorily-approved purpose. reliable consultants, inc. v. earle, 517 f.3d 738, 741 (5th cir.2008). the fifth circuit determined that the statute impermissibly burdened the individual’s substantive due process right to engage in private intimate conduct of his or her choosi... | B. holding that lawrence did not overrule paris adult theatre i v slaton in which the united states supreme court upheld a georgia statute virtually identical to the texas obscenity statute |
Consider the following statement:
Court in johnson stressed that it must “of course decide appealability for categories of orders rather than individual orders.” id. at 315, 115 s.ct. 2151. .accordingly, we cannot, in each individual case, “engage in ad hoc balancing to decide issues of appealability.” id. therefore, e... | E. holding that in reviewing the district courts decision concerning expert testimony we must first determine whether the district court properly followed the framework set forth in daubert |
Consider the following statement:
Fact-finding, the court will exercise its discretion to examine the claim. appellants charge that the cfa note and mortgage were criminally usurious under new york penal law § 190.40 and new york general obligations law §§ 5-511, 5-501-1, and 5-501-6-a. (appellants’ br. at 8.) under th... | A. holding that the new york usury laws do not apply to interest charged on past due debts |
Consider the following statement:
Equitable distribution scheme and residential custody award, finding no abuse of discretion. however, because the final judgment fails to address the issues of alimony and general attorney’s fees and costs, we reverse and direct the court to make those determinations. the parties were ... | E. holding that purpose for requiring findings of fact to support an alimony award is to assist appellate court in providing meaningful review |
Consider the following statement:
Not a party to these state court eminent domain proceedings, and there is also no indication that he was in privity with any of the property owners involved in those proceedings. without such a relationship, neither claim nor issue preclusion applies to plaintiffs claims before this co... | B. holding that no federal court other than the supreme court may entertain a proceeding to reverse or modify a judgment of a state court |
Consider the following statement:
Article two analogue to 9-307.”). in other jurisdictions, then, the present case would likely be resolved in favor of the hattens and pralles as buyers in the ordinary course of business, either under section 9-307 or section 2-403. cases from other states are instructive because the u... | B. holding that normal presumption of ownership in favor of holder of motor vehicle certificate of title may be rebutted despite language of minnstat 168a10 subd 5 providing that the transfer of a motor vehicle is not effective until titling requirements are complied with |
Consider the following statement:
Weapon was not recovered, martin confirmed during the interview that the toolbox police found in jacey’s vehicle was his, and that he threw the hammer he used to kill jacey into a river. thereafter, martin hid jacey’s body in the bushes and proceeded to use her vehicle and other belong... | B. holding death penalty proportionate where the trial court found ccp and three other aggravators and twentynine nonstatutory mitigators |
Consider the following statement:
At all. lanier has- shown no error relating to the epicedge question. d. attorney disqualification challenges generally, the existence of a conflict of interest is a legal question subject to de novo review. see, e.g., united states v. garza, 429 f.3d 165, 171 (5th cir. 2005) (conflict... | E. holding that harmlesserror analysis is inappropriate in reviewing the appointment of an interested prosecutor |
Consider the following statement:
Annuities, see d.c.code § 5-716 (2012 repl.). the linkage between "performance of duty” in d.c.code § 1-612.030 and the disability act is further supported by the apparent application of the procedural provision in d.c.code § 5-708.01 (addressing "processing of claims of injuries alleg... | C. holding that a secret service agent who alleged that onthejob stress resulted in a psychological injury had made out a prima facie case that he had incurred a performance of duty injury |
Consider the following statement:
Court argued that the constitutional question was “not particularly meaningful” on a motion to dismiss, as an order denying the motion would not enter “final judgment” and an order granting the motion would be subject to the same de novo standard of review on a bankruptcy appeal as a r... | B. holding judgment under fed rcivp 12b6 is entitled to res judicata effect |
Consider the following statement:
Boat. all six (martinez-rios, ramirez-fajardo, castaneda-marin, sanchez-martinez, ortiz-cotoa and carmargo-silvera) were charged with conspiracy to possess and with possessing cocaine with intent to distribute it in violation of 46 u.s.c. app. §§ 1903(a) and 1903(j), and 18 u.s.c. § 2.... | E. holding under predecessor to 46 usc app 1903a that jurisdictional element of crime is question of fact for jury to decide |
Consider the following statement:
Very matter on which he proposes to give an opinion.” gammill v. jack williams chevrolet, inc., 972 s.w.2d 713, 718 (tex.1998). paragraph six of dr. katz’s affidavit states, in pertinent part, that, when an anesthesiologist renders anesthesia services, whether on call or during the reg... | D. holding that maryland doctor not qualified to testify about whats ordinarily billed or what the law ordinarily allows people to recover for their medical services in the state of texas |
Consider the following statement:
Feirson on an unrelated matter, he denies the existence of an ongoing patient-physician relationship with sgt. feirson. see thorne reply at 2; see also browne v. brooke, 236 f.2d 686, 688 (d.c.cir.1956) (in finding no patient-physician relationship the court considered statements by do... | E. recognizing no patientphysician relationship for doctor hired by employer to conduct screening examinations of employees |
Consider the following statement:
177-78, 117 s.ct. 1154, 137 l.ed.2d 281 (1997) (internal quotation marks omitted): dhs’s policy of considering deterrence has profound and immediate consequences for central american asylum seekers detained as a result. relatedly, defendants emphasize that plaintiffs have failed to cit... | C. holding that both law and logic dictate that an unwritten agency policy is reviewable |
Consider the following statement:
Sentences, each of which would not have exceeded 20 years. the apprendi rule, therefore, would not be implicated. it follows as night the day that any failure of the indictment in this case to allege quantity in the possession counts was immaterial. see price, 265 f.3d at 1108. c. fair... | A. holding that failure to charge drug quantity in the indictment and submit it to the jury seriously affects the fairness integrity and public reputation of judicial proceedings so that the court should exerciseits discretion to recognize the error |
Consider the following statement:
Medicine), could not eliminate any of the other potential causes either. all he could do was assess the likelihood it was one cause or another, and he found that the tetanus was least likely to have originated with the wound on may 13th. in fact, avery said it was less than a hundredth... | A. holding expert testimony provided no evidence as to causation since testimony was not based upon reasonable medical probability |
Consider the following statement:
Which was believed to be a mitigating factor. the court again asked defendant whether he wished to persist in his plea of guilty or whether he wanted to interpose a defense. defendant repeatedly answered that he did not want to withdraw his plea, nor was he trying to plead self-defense... | C. holding that a waiver of counsel once made and not retracted is operative throughout the proceedings |
Consider the following statement:
Error, mandlbauer argues the trial court erred by not submitting an instruction on sole cause in the jury charge. sole cause is an inferential rebuttal defense, which may be submitted to the jury only as an instruction. reid v. best waste systems, inc., 800 s.w.2d 644, 646 (texapp. — h... | C. holding it is reversible error for a trial court to exclude a definition on new and independent cause an inferential rebuttal defense when supported by the evidence |
Consider the following statement:
To stephanie's college expenses, at the very least, he should receive a credit against the arrearage for the time stephanie was away at school. we begin by noting that upon dissolution of marriage, parties are free to draft their own settlement agreements. niccum v. niccum, 734 n.e.2d ... | B. holding that although a parents general duty to support his or her child ends when the child reaches twentyone years of age parents are free to enter into binding agreements to do so |
Consider the following statement:
Corroborated” by police. id. at 330, 110 s.ct. at 2416. accord pinkney v. state, 666 so.2d 590 (fla. 4th dca 1996)(anonymous tip requires “detailed and specific information corroborated by police investigation” since the informant’s veracity, reliability, and basis of knowledge are unk... | E. holding that a tipster fully identified by occupation and address was entitled to as much credibility as a paid informer or the victims themselves |
Consider the following statement:
In the case of an automobile accident that appears partially attributable to the presence of foliage obscuring a stop sign, the settling parties could release the persons responsible for the foliage by including terminology like “and the owners, occupiers, and any other persons respons... | C. holding that because of widespread use of and reliance on general language specific identity rule would apply prospectively only |
Consider the following statement:
Proposed amendment is untimely. it was filed ten months after plaintiffs original complaint was filed in this court, two months after the close of discovery, and one month after defendant moved for summary judgment. the plaintiff has presented no explanation as to why the court should ... | B. holding plaintiff bears the burden of showing that delay was due to oversight inadvertence or excusable neglect |
Consider the following statement:
Profitability of the funds portfolios” such that “[t]o the extent that mispricings improperly inflated the reported value of the portfolios, james river benefitted from and had a direct motive to commit the alleged fraud.” (appaloosa and tepper’s opp. at 10, hereinafter “opp.”, citing ... | A. holding that financial gain from compensation for professional services is not a sufficient motive for purposes of pleading scienter |
Consider the following statement:
City of jackson v. southard, 869 s.w.2d 280, 281-82 (mo.app.1994); evans, 779 s.w.2d at 255. as further support for the rule that we lay down here, that no trial de novo lies in a municipal case from a sis, we would point to the fact that this was the rule when trials de novo to the ci... | C. holding that no sentence is imposed in the case of a sis |
Consider the following statement:
Of resistance by the victim and the use of physical force by the perpetrator.” id. at 932 (citing the bia’s decision). accordingly, we held that sexual battery is categorically a crime of violence under § 16(b). in lisbey, we noted approvingly cases from other circuits which- establish... | A. holding that attempted sexual abuse of a child under the age of fourteen is a crime of viqlenee |
Consider the following statement:
Raised the issue of the constitutionality of minn.stat. § 278.03 (2010), which provides for a waiver of the payment of taxes during the pendency of a tax appeal petition upon a showing of hardship in its motion for summary judgment, the parties stipulated on october 28, 2009, to transf... | D. holding where exempt organization was in possession of real property under land contract obligating organization to pay the purchase price and use land for exempt purpose the association was the owner of the land within the meaning of the statute |
Consider the following statement:
(ruling that a city’s fireworks ordinance does not violate the due process clause of the federal constitution because the statute was a reasonable means for attaining the legitimate end of preventing the proliferation of fireworks outlets that, if allowed, would impose unacceptable bur... | D. holding that the inclusion of the terms use and possess in a state law prohibiting the possession storage use manufacture or sale of fireworks in counties exceeding a certain population do not render the states exercise of police power unduly oppressive or unconstitutional |
Consider the following statement:
Of section 1915(g) if an inmate was allowed to exploit [the procedure of referring prisoner complaints to magistrate judges for initial screening] by filing a meritless action and waiting until after it was reviewed to move for dismissal”). conclusion a district court is not required t... | A. holding that a district court is justified in dismissing a complaint with prejudice if the plaintiff persists in violating rule 8 |
Consider the following statement:
Learned intermediary defense. if there is no basis in the record for the instruction given, such error may raise a “substantial and ineradicable doubt as to whether the jury was properly guided in its deliberations,” and reversal may be required. mcelroy v. firestone tire & rubber co.,... | C. holding that the district court erred in failing to properly charge the jury on defendants affirmative defenses |
Consider the following statement:
Medical records — was that the wear and tear on his discs was the result of his work activities. the dissent dismisses anderson’s testimony because it was in response to “questions posed to anderson ... phrased by anderson’s employer using a disjunctive clause” — that is, whether ander... | D. recognizing that a preexisting disease or infirmity of the employee does not disqualify a claim arising out of employment if the employment aggravated accelerated or combined with the disease or infirmity to produce disability for which compensation is sought |
Consider the following statement:
That, as of the condemnation date, the parcel contained fifteen acres of wetlands that could legally be drained. specifically, the department argues that even if the parcel is not subject to regulation under the cwa, it is subject to state regulation by the office of ocean and coastal ... | E. holding that an unappealed ruling right or wrong is the law of the case |
Consider the following statement:
The jerrels proposed tattooing and a plastic tagging method. after seriously considering these alternatives, the hearing officer ultimately rejected them as not sufficiently permanent or visible. the fact that dnr gave the jerrels two years to come up with an alternative solution — fro... | B. holding that agencys practical method for accomplishing its goal of safe disposal systems was reasonable and not arbitrary |
Consider the following statement:
Have objected to this statement by the prosecutor and to the use of the word “or” in the jury charge on the ground that appellant’s fourteenth amendment right to due process of law was violated because the information alleged one offense, but the state proved another. it is proper for ... | B. holding although indictment may allege manner and means of committing offense in the conjunctive jury may be charged in the disjunctive and a conviction on any method alleged will be upheld if the evidence supports it |
Consider the following statement:
Of canady i litigation to begin, we reject appellants’ argument that missouri law, not the federal law of res judicata, should apply in this case because the saunders cases were originally filed in missouri state court. we have determined already that the relevant prior judgment was is... | A. holding that federal law governs res judicata effect of an earlier federal judgment based on federal law |
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