Sunday, December 25, 2011

The Law Of Facebook: The Altar Of Debauchery Or Prevailing Social Norms?

The Connecticut Supreme Court has affirmed a decision of the Appellate Court finding no reversible error in a probation revocation order.

The defendant/probationer was sentenced to prison on alcohol-related offenses and was subject to a  number of probationary conditions after her release.

At issue was the prosecutor's submission of evidence consisting of a series of photographs from her Facebook page. The undated photos appeared to show her partying at, among other places, Yankee Stadium. Some of the photos had the message "this is why I'm hot."

The prosecutor argued at the hearing that the photos evinced a violation:

...in all these pictures is again [the defendant] worshipping at the altar of alcohol and debauchery and lewd behavior. And why is that significant? It's significant because the message didn't get sent, and this individual refused to accept it.

The court describes the defense counsel's reply:

...the alcohol-related behavior evident on the defendant's Facebook profile was reflective of prevailing social norms, and the images were not representative of the way the defendant spent most of her time...

The court noted that the evidence would not satisfy the requirements of admissibility in a criminal trial but met the "minimal indicia of reliability necessary to pass constitutional muster in the context of a probation revocation hearing." (Mike Frisch)

December 25, 2011 in Law & Society | Permalink | Comments (1) | TrackBack (0)

Thursday, December 22, 2011

No Loss Of Consortium Claim For Domestic Partner

The Connecticut Appellate Court has held that a same sex domestic partner who had not yet entered into a civil union cannot assert a loss of consortium claim:

Even if we were to assume that a complaint that includes such an allegation states
a legally sufficient claim for loss of consortium, the plaintiff did not plead this fact in the third amended complaint. Although the plaintiff pleaded that she was in a stable relationship with Mueller, lived with her for many years, supported her financially and entered into a civil union with her one and one-half years after the tortious conduct had occurred, these allegations, even when construed in the light most favorable to the plaintiff, do not allege that the couple would have formalized their relationship before the defendants’ negligent acts ceased on March 5, 2004. Absent such an allegation, the plaintiff’s claim is functionally equivalent to that presented in Gurliacci.

The Gurliacci decision involved a loss of consortium claim based on an engaged relationship that had not yet resulted in marriage. (Mike Frisch)

December 22, 2011 in Law & Society | Permalink | Comments (0) | TrackBack (0)

Wednesday, December 14, 2011

Beating Is Not An Abortion

The Utah Supreme Court has held that a juvenile who solicited a beating to terminate her pregnancy did not seek an abortion. The term "abortion" is limited to medical procedures.

We conclude that the legislature could not possibly intended for the term abortion to include any series of steps or actions undertaken to kill an unborn child, including the alleged solicited violent beating of a pregnant woman.

The court thus reversed an order of the juvenile court dismissing delinquency charges and remanded for further proceedings.

In a separate opinion, the court reversed the dismissal of attempted murder charges against the adult who administered the beating. (Mike Frisch)

December 14, 2011 in Law & Society | Permalink | Comments (0) | TrackBack (0)

Tuesday, December 13, 2011

Invitation To An Inquest Transcript

In a decision involving the request of the Globe newspapers for a transcript of the inquest into murder charges against Amy Bishop, the Massachusetts Supreme Judicial Court today has held:

Applying our new standard to the inquest report and transcript at issue in this case, the denial of the motion to impound must be vacated because, as to the transcript, the judge failed to recognize the effect of G.L. c. 38, § 10, and, as to the report, the judge rested on the principle in Kennedy that we now replace with the rule that the report becomes a presumptively public document when the transcript becomes a presumptively public document. On remand, the judge will conduct further proceedings in accordance with this opinion, with the proviso that the inquest report and transcript shall continue to be impounded until at least ten calendar days after the issuance of the rescript. After the issuance of the rescript, the defendant, the Commonwealth, the decedent's immediate family, or another interested party shall have ten calendar days to move in the criminal case in the Superior Court to impound the inquest report and transcript for "good cause shown." If no such motion is filed, the report and transcript shall be made available to the public. If such a motion is filed, the report and transcript shall continue to be impounded temporarily until the adjudication of the motion or further order of the judge.

Finally, we address whether, in the future, a petition under G.L. c. 211, § 3, shall continue to be the only means to obtain review of the denial or allowance of a motion to impound an inquest report or transcript, or to vacate or modify an order of impoundment. In civil cases, under Rule 12 of the Uniform Rules on Impoundment Procedure at 905 (LexisNexis 2011-2012), an order impounding or refusing to impound documents filed in court may be appealed to a single justice of the Appeals Court. See Commonwealth v. Silva, 448 Mass. 701, 705 (2007). In criminal cases, we have declared that the "[p]ractice regarding orders of impoundment entered in criminal proceedings should hew as closely as possible to the protocol established by the uniform rules," and require that appellate review of impoundment orders conform to the uniform rules. Id., quoting Republican Co. v. Appeals Court, 442 Mass. 218, 227 n. 14 (2004). We conclude that in the future the practice regarding orders impounding or refusing to impound an inquest report or transcript should also "hew as closely as possible to the protocol established by the uniform rules," and that, as in the uniform rules, such orders may be appealed to a single justice of the Appeals Court.

Bishop is a professor charged in Alabama with the murder of three colleagues. This decision relates to the investigation into the 1986 death of her brother.

The prior Kennedy decision described above related to the inquest into the death of Mary Jo Kopeckne.

The title to this post was inspired by this book. (Mike Frisch)

December 13, 2011 in Law & Society | Permalink | Comments (0) | TrackBack (0)

Monday, December 5, 2011

No Liability For Home Plate Collision

The South Carolina Supreme Court has held that a baserunner who collided at home plate with the catcher in a Boy Scout softball game is not liable for damages. Both catcher and baserunner were fathers who participated in the game.

The facts:

In March 2004, David Cole and his son, David Jr., who was a member of Cub Scout Pack 48, attended a Cub Scout family camping trip.  During the course of the trip, Cole and David Jr. participated in a father-son, pick-up softball game.  Jeff Wagner and his son were also on the camping trip and were playing on the opposite team from the Coles in the softball game.   Although one of the older boys had been playing catcher, Cole took over the position because he was afraid the boy would be hit by a foul ball or by the batter. 

Neither of the teams kept score, and during each inning everyone was allowed to bat.  Apparently, some of the fathers were playing too aggressively in the minds of some participants and hitting the ball with full swings.  One of the Scout leaders, Keith Corley, briefly interrupted the game and asked them to play more safely, fearing that they were putting the scouts in danger. 

During Wagner's next turn at bat, he hit a double.  Another father came up to bat after him and hit the ball into the outfield, potentially allowing Wagner to score.  As Wagner reached home plate, he collided with Cole, who had moved on top of the plate, thereby placing his body directly in the baseline.  Wagner was running so fast that he was unable to stop or change directions in time to avoid Cole.  Upon impact, Wagner flipped in the air and landed on a bat, breaking a rib.  Cole suffered a closed head injury and was rendered semiconscious.  He then began bleeding and went into convulsions.  Cole had to be airlifted to Palmetto Richland Hospital where he spent two days in the intensive care unit.  David Jr. witnessed the entire accident in fear that his father was going to die. 

Cole and his wife Karen, personally and as guardian ad litem for David Jr. (collectively, Appellants), brought this action against Wagner, the Boy Scouts of America, Indian Waters Council of the Boy Scouts of America, Pack 48, and Faith Presbyterian Church for personal injury, loss of consortium, and negligent infliction of emotional distress.  Wagner moved for summary judgment, contending he owed no duty to Cole because Cole assumed the risks incident to the sport of softball.  The circuit court granted Wagner's motion, and this appeal followed.   

No liability:

Even assuming, arguendo, that Wagner's conduct could be characterized as reckless, it was not so reckless as to involve risks outside the scope of softball.  The likelihood of someone running too fast to stop or playing more aggressively than anticipated is part of the competitive atmosphere of athletics.  Almost all contact sports, especially ones that require protective gear as part of their equipment, involve conduct that a reasonably prudent person would recognize may result in injury.  To the extent these risks inhere in the sport involved, we hold some recklessness by coparticipants in a contact sport must be assumed as part of the game. Accordingly, a player assumes the risk of ordinary recklessness committed within the course of the game.

We emphasize that this holding is limited to recklessness committed within the scope of the game and does not include intentional conduct by a coparticipant of a sport, or conduct so reckless as to be outside the scope of the game.  Even within the context of a contact sport, players owe reciprocal duties to not intentionally injure each other.  Cole does not allege that Wagner's conduct was intentional nor does he allege such recklessness as would fall outside the scope of the game of softball.  Thus, Wagner's conduct fell within the duty of care he owed to Cole as a coparticipant in the game.

(Mike Frisch)

December 5, 2011 in Law & Society | Permalink | Comments (0) | TrackBack (0)

Tuesday, November 22, 2011

The CSI Effect

The Maryland Court of Appeals has reversed a conviction for sexual assault and assault because the court gave a so-called "anti-CSI effect" jury instruction.

The court was unpersuaded that the TV show has created a phenonenon that permits the use of such an instruction absent some need to cure "pre-existing overreaching by the defense...." The instruction "is fraught with potential for reversible error" and may diminish the requirement of proof beyond a reasonable doubt.

The instruction advises a jury that "there is no legal requirement that the State utilize any specific investigative technique or scientific test to prove its case."

The court may revisit the issue if scholarly research establishes that there is a CSI effect. (Mike Frisch)

November 22, 2011 in Law & Society | Permalink | Comments (0) | TrackBack (0)

Wednesday, November 16, 2011

I Could Write A Book

The Indiana Court of Appeals has reversed a murder conviction and ordered the appointment of a special prosecutor where the prosecutor had entered into a (now cancelled) literary contract for a book about the case. The contract "created an irreversible, actual conflict of interest with [the prosecutor's] duty to the people of Indiana...the trial court erred when it denied [the defendant's] petition."

The defendant was facing a third trial and second retrial on charges that he had murdered his wife and two children. The first conviction was reversed due to prejudicial evidence concerning the defendant's extramarital affairs. After the second conviction, he filed an interlocutory appeal seeking a special prosecutor in light of the book deal.

The Floyd County Prosecutor prosecuted the defendant in the second trial. He was contacted by a literary agency "hours before the jury reached a verdict..." He inked the deal before sentencing. The defendant got life without parole.

The book deal progressed under the working title, "Sacred Trust: Deadly Betrayal." The prosecutor received an advance payment of $1,700. After the conviction was reversed by the Indiana Supreme Court, Penguin (the publisher) decided to delay any decision about moving forward with the book. Eventually, the deal fell through. The prosecutor returned the advance to Penguin.

The prosecutor refiled the murder charges. The defendant sought to remove him and have a special prosecutor appointed because of the book deal. At a hearing on the motion, Dean Emeritus Norman Lefstein at Indiana University School of Law testified that there was a conflict of interest. The trial court nonetheless denied the motion in light of the cancellation of the contract.

The court here found that the book deal was "a bell that cannot be unrung" that "permanently compromised [the prosecutor's] ability to advocate on behalf of the people of the state of Indiana in this trial."

Thanks to my favorite Hoosier attorney - Don Lundberg - for sending me the case.

Inspiration for the title to the post: Frank Sinatra. (Mike Frisch)

November 16, 2011 in Law & Business, Law & Society | Permalink | Comments (0) | TrackBack (0)

Monday, October 31, 2011

Honking Horn As Protected Speech

The Washington State Supreme Court sustained a constitutional challenge to a county noise ordinance that prohibited honking for any reason other than public safety. A defendant was convicted for honking a car horn at 6 am in front of a neighbor's house.

The court majority:

 A moment's reflection brings to mind numerous occasions in which a person honking a vehicle horn will be engaging in speech intended to communicate a message that will be understood in context.  Examples might include: a driver of a carpool vehicle who toots a horn to let a coworker know it is time to go, a driver who enthusiastically responds to a sign that says "honk if you support our troops,"wedding guests who celebrate nuptials by sounding their horns, and a motorist who honks a horn in support of an individual picketing on a street corner.  Thus, we reject the Court of Appeals' conclusion that horn honking is a type of conduct that does not involve speech.  Immelt, 150 Wn. App. at 687.  Horn honking does  constitute protected speech in many instances, regardless of whether it would constitute protected speech in Immelt's particular case...

The horn ordinance here does not survive scrutiny.  It is substantially overbroad, "not only in an absolute sense, but also relative to the statute's plainly legitimate sweep."   Williams, 553 U.S. at 292.  It prohibits a wide swath of expressive conduct in order to protect against a narrow category of public disturbances.  

There are dissents, linked here and here.

In its examples, the court fails to note the expressive value of honking at someone who cuts you off in traffic. (Mike Frisch)

October 31, 2011 in Law & Society | Permalink | Comments (0) | TrackBack (0)

Supporting Our Troops

The Oklahoma Supreme Court has entered an order providing that Bar Association members serving on active duty in the military in a combat zone may request waiver of annual bar dues:

Active OBA Members who are in an active duty and deployed status serving outside of the United States or one of its territories with the Armed Forces of the United States in a combat zone or receiving "Imminent Danger Pay" (Combat Pay) or "hardship duty pay" in any given year may request that dues be waived for that year. A request for a waiver of dues, along with sufficient supporting documentation of service, shall be submitted to the Executive Director of the Oklahoma Bar Association as soon as reasonably practical. Members requesting such dues waiver shall have the right to appeal any administrative decisions made by the Executive Director to the Board of Governors of the Oklahoma Bar Association and ultimately to the Oklahoma Supreme Court. In the event the member is not able to submit the request personally, such request can be made by a family member, law partner or other such person having authority to act on behalf of the member.

The yearly dues are $275.00 (Mike Frisch)

October 31, 2011 in Current Affairs, Law & Society | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 19, 2011

Medicaid Planning And Unauthorized Practice

From the web page of the Ohio Supreme Court:

An advisory opinion recently issued by the Board on the Unauthorized Practice of Law of the Supreme Court of Ohio outlines the activities non-attorneys can and cannot engage in concerning Medicaid benefits.

According to Opinion UPL 11-01, non-attorneys may review documents, prepare and file Medicaid applications and attend state hearings on behalf of an individual “to the extent that those activities are authorized by federal law.”

The opinion draws the line for non-attorneys at performing “Medicaid planning” for current and prospective nursing-home patients and/or their families regarding qualification for Medicaid benefits “if it requires specialized legal training, skill, and experience.”

The opinion clarifies this point further.

“Medicaid planning, which consists of arranging assets and income to meet Medicaid eligibility requirements, is outside the scope of the non-attorney assistance permitted by federal law. State regulation of Medicaid planning is therefore not preempted by federal law. In many cases, Medicaid planning involves estate work and legal expertise. Accordingly, the board further concludes that the establishment of a Medicaid planning strategy for another by a non-attorney constitutes the unauthorized practice of law.”

A copy of the opinion is available at: http://www.supremecourt.ohio.gov/Boards/UPL/advisory_opinions/UPLAdvOp_11_01.pdf.

October 19, 2011 in Law & Society, The Practice | Permalink | Comments (0) | TrackBack (0)

Thursday, October 13, 2011

"A Fun, Safe Environment..."

The New York Appellate Division for the First Judicial Department declined to dismiss a lawsuit involving horrific injuries sustained by a bar patron. The defendant who had sought the dismissal was Bacardi.

The court found that the allegations sufficiently pled a viable claim for actual and punitive damages:

Plaintiff patron alleges that she was injured when, while at the bar at defendants-respondents' restaurant, the bartender, in a pyrotechnic display, poured Bacardi's high-alcohol content rum onto the surface of the bar and ignited it. At that point, the flame ignited into the bottle and the flaming contents shot out of the mouth of the bottle. As a result, plaintiff sustained severe burns.

The motion court properly concluded that under the circumstances plaintiff has viable claims for both negligence and strict liability based on defective design. Bacardi has submitted no evidence substantively contradicting the facts set forth in the complaint or in the affidavits of plaintiff's experts...Although Bacardi included warning labels on the bottle of Bacardi 151 and installed a removable flame arrester, it did so while actively promoting the very pyrotechnic uses that caused plaintiff's injuries.

The New York Daily News had this coverage of the filing of the suit:

A Manhattan woman who went up in flames to "Great Balls of Fire" when a bartender lit a match to 151-proof booze is firing back in court.

Lauren Sclafani is suing the owners of the Brother Jimmy's chain of barbecue restaurants after she suffered second- and third-degree burns in March in a fiery stunt gone bad.

"I was just about to leave when they decided to light the bar on fire," Sclafani said. "The next thing I know, I am on fire."

Sclafani and a friend were at the Brother Jimmy's on Amsterdam Ave. when the bar was doused in Bacardi 151 rum and lit on fire while the classic Jerry Lee Lewis tune played.

Her suit, filed in Manhattan Supreme Court, charges the bottle of booze exploded, shooting flames that engulfed Sclafani's face, arms and arms.

"It's like lighting gasoline," said her lawyer, Thomas Moore.

Sclafani, a financial worker, spent three weeks in the burn center at New York-Presbyterian Hospital, where she underwent surgeries and skin grafts.

"I can't understand why they would light the bar on fire," she said. "It's mind-boggling to me that they would put so many people in peril."

A spokesman for Brother Jimmy's - which no longer keeps bottles of 151-proof rum in stock - defended the chain's safety record.

"It is a fun, safe environment that people have come to know for 20 years," said Ron Berkowitz.

Sclafani said her injuries will force her to wear compression garments on her hands and to stay out of the sun.

"I just want to go on with my life," she said. "But I really can't."

Her suit also targets Bacardi.

"If you want to do some drinking, I can't think of why 100-proof wouldn't be enough," Moore said.

(Mike Frisch)

October 13, 2011 in Law & Society | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 4, 2011

Bar Bar Upheld

A woman who was convicted of participation in a theft scheme with her husband appealed her sentence in two respect. One, she objected to the amount of restitution. Two, she objected to a condition that prohibited her from going to bars.

The Wyoming Supreme Court agreed that the restitution order should be reversed but rejected her appeal on the bar condition and held  that the sentencing court had acted within the bounds of the law:

[The defendant] has a long hisdtory of illegal drug use and continues to use on a daily basis. A restriction on entering bars is sufficiently connected to her circumstances and furthers her rehabilitation by preventing her from being places where alcohol is purveyed, which may lessen the chance that she will replace or supplement her use of illegal drugs with alcohol and thereby hinder her rehabilitation.

The husband was sentenced to prison time. (Mike Frisch)

October 4, 2011 in Law & Society | Permalink | Comments (0) | TrackBack (0)

Wednesday, September 28, 2011

Indigent Defendants Entitled To Publicly-Funded Resources In Utah

The Utah Supreme Court has held that a criminal defendant who is declared to be indigent may qualify for court-paid resources even after retaining private counsel.

 In another case, a defendant who was represented by retained counsel sought an order required the Salt Lake Legal Defender Association ("LDA") to pay the costs of an expert witness. The trial judge granted the motion without notice to the LDA.

On appeal, the Utah Supreme Court held that LDA had a due process right to notice and to be heard before being ordered to pay for the expert. (Mike Frisch)

September 28, 2011 in Law & Society | Permalink | Comments (0) | TrackBack (0)

Friday, September 16, 2011

The Terminated

A University of Tennessee at Chattanooga professor was removed as department head but continued as a professor. He sued, alleging that the action had been taken when he had refused to delete his unfavorable evaluation of a colleague who was seeking tenure.

The complaint alleged:

• Dr. [H.]’s duties as department head included the review of the academic
credentials and professional performance of professors within the Department.

• [T.W.], hired as an assistant professor in the Department in 2001, was
scheduled to be considered for tenure in the spring/summer of 2008. During 2007, as part
of his administrative duties as department head, Dr. [H.] concluded that Ms.[W.]’s
professional conduct was not acceptable. His conclusions were based in part on her repeated
and unannounced absences from the classroom, her refusal to accept his advice when she
engaged in an extra-marital affair with an undergraduate student in the department, her
falsification of information in several year-end reports and in her resume, and her fraudulent
claims for several alleged publications that did not exist.

• When the Dean of the College of Arts and Sciences...became aware
of Dr. [H.]’s evaluation of Ms. [W.], he instructed the Acting Dean to order Dr. [H.]
to remove all negative information from the evaluation.

• Dr. [H.] informed Dean Burhenn that he did not intend to remain silent about
these matters while the University conducted a final tenure review for Ms. [W.]. Dr.
[H.] sent Dean Burhenn an e-mail stating “I cannot any longer obey orders to cover up
professional malfeasance on the part of any member of this department, and I cannot agree
to having such information suppressed.” In a meeting following the email, Dean Burhenn
asked Dr. [H.] to resign as department head.

• When Dr. [H.] refused to resign or remain silent about Ms. [W.]’s “academic
fraud,” he was “informed that he would be terminated as Department Head at the end of the
academic year. This termination was based on [his] refusal to alter official documents or
remain silent as to the academic fraud and professional malfeasance which was perpetrated
on the University and the citizens of the State of Tennessee.”

The Tennessee Supreme Court affirmed the dismissal of the action, concluding that the loss of the department head position did not create a cause of action under the Tennessee Public Protection Act:

It is not disputed that Dr. [H.] was removed as department head, but continued to
be employed as a professor. Whether his complaint is sufficient depends on whether the
TPPA applies to an employee whose employment relationship is completely severed or only
modified in some manner. By its language, the TPPA applies to an employee who is
“discharged or terminated.” Because these terms are unambiguous, we look to “the natural
and ordinary meaning of the statutory language within the context of the entire statute
without any forced or subtle construction that would extend or limit the statute’s meaning”
to determine the legislature’s intent.

A dissent would find the allegations sufficient to state a claim, as the plaintiff had been "terminated" as department head.  (Mike Frisch)

September 16, 2011 in Law & Society | Permalink | Comments (0) | TrackBack (0)

Wednesday, August 31, 2011

A Man's Car Is His Castle

The Mississippi Court of Appeals has reversed a manslaughter conviction as a result of the trial court's failure to give a requested jury instruction on the so-called Castle Doctrine.

The facts:

On March 8, 2008, a fundraising party was being held at the Performing Arts Building in Southaven, Mississippi. After the party, a crowd gathered in the parking lot and a fist fight ensued. Security attempted to stop the fight but could not. [Defendant] Thomas shot a gun in the air, and the attack stopped. The State and defense each called several witnesses who were in the parking lot on the night of the shooting to testify as to the events that followed. Thomas chose not to testify at trial.

Kenetric Randolph testified for the State. He had attended the party and witnessed Thomas shoot a gun in the air during the fight in the parking lot. Randolph testified that he thought Thomas was shooting at him or the young men standing with him. Randolph testified that Thomas immediately ran and got into his car. Randolph and several other men ran after Thomas and tried to open Thomas’s car doors, but Thomas had locked the doors. Randolph testified that Thomas began to reload his gun, and Randolph and the other men ran to the back of the car. He testified no one was in front of the car. Dexter Harris was to Randolph’s left at the rear of the car. Randolph testified that he then threw a cell phone at the car in an attempt to break the back window. Thomas then rolled down the driver’s side  window and fired several shots from his car. Two of the shots hit Harris in the chest and thigh. Harris subsequently died from his wounds. Thomas then drove off. Randolph testified that Thomas could have fled in the car at any time as nothing was blocking the car’s path.

The court concluded that the Castle instruction was appropriate along with a self-defense instruction. (Mike Frisch)

August 31, 2011 in Law & Society | Permalink | Comments (0) | TrackBack (0)

Thursday, August 25, 2011

Make Weight Argument

Not a legal profession case but one that is hard for me to resist as a former wrestler.

The Maine Supreme Court has held that a school district is not liable for damage caused to a motel room used during a school-sponsored event.

The facts:

Four members of MSAD 43’s wrestling team stayed in room 216. At
some point that night, the team members in room 216 turned on the shower,
blocked the ventilation system, and used the motel’s hairdryer to create a makeshift
sauna to help one of their teammates “make weight” for the next day’s match. As
a result of the students’ actions, the motel’s sprinklers activated.

Middlesex [the insurer] paid out $10,693.68 to repair the damage caused by the
students’ actions.

The court rejected the insurer's subrogation claim. (Mike Frisch)

August 25, 2011 in Law & Society | Permalink | Comments (0) | TrackBack (0)

Thursday, August 4, 2011

Sacked!

The Nevada Supreme Court has held that Steelers quarterback Ben Roethlisberger failed to establish a basis for a change of venue from one Nevada county to another:

The record contains no evidence demonstrating that the convenience of the witnesses compels a change in venue or that holding the trial in Douglas County rather than in Washoe County would promote the interests of justice.  The difference in travel times to the courts in either county are, for many witnesses, relatively minimal.  And while Roethlisberger may receive a speedier trial in Douglas County, it is not an abuse of discretion for the district court to conclude that the ends of justice are adequately served by keeping venue in Washoe County and would not be furthered by a change of venue to Douglas County.  We conclude that the district court did not abuse its discretion in denying Roethlisberger’s motion to transfer venue...

            Accordingly, because Roethlisberger lacked standing to demand that venue be changed under NRS 13.040 and has shown no abuse of discretion with regard to the district court’s NRS 13.050(2) determination, we affirm the district court’s order refusing to change venue.

The litigation involves tort claims against nine defendants. (Mike Frisch)

August 4, 2011 in Law & Society | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 27, 2011

King Of The Wild Frontier

The Tennessee Court of Appeals has affirmed an order directing the person who had possession of Davy Crockett's original 1805 certificate of marriage to return it to Jefferson County. The license had been removed from the county courthouse in the 1930s:

Questioning the historical prominence of David Crockett around the time the license was taken, Mrs. Smith argues in her brief that Crockett was “largely forgotten” by the late 19th century but his legend was reborn when Walt Disney made a 1950s television series about the Tennessean. Assuming arguendo that Mrs. Smith is correct, she has stated in the record that her uncle, Harry Vance, was an “admirer of David Crockett” and a “David Crockett enthusiast” and that her father, Paul Vance, had an interest in David Crockett. Based on her own admission, the two individuals primarily responsible for removing the subject marriage license from the Jefferson County courthouse in the 1930s or 1940s were certainly aware of David Crockett and most likely recognized his historical significance. Accordingly, we reject this issue as lacking merit.

The license (the marriage never took place) apparently had been removed by the Mrs. Smith's uncle (a county bigwig) and given to her father. The court here found the circumstances of the removal lost to history but that the removal was an unlawful conversion of county property. The court noted that the county had kept it for 130 years or so.

The existence of the document came to light when Ms. Smith contacted the county historical society in the mid to late 1990s.  Eventually, a demand was made and Mrs. Smith refused to return it. This litigation followed.

The court found no error in the failure to admit Mrs. Smith's interview on Antiques Roadshow. The court also affirrmed contempt findings against her.

The court found the trial court could take judicial notice that Crockett had been a congressman from that district and had died at the Alamo.

Mrs. Smith returned the license in February 2010.

The trial court's view of the proffered explanation of the removal: "[T]hat dog just won't hunt." (Mike Frisch)

 

July 27, 2011 in Law & Society | Permalink | Comments (0) | TrackBack (0)

Friday, July 22, 2011

A Trip To The Dentist Leads To A Trip To Prison

The Indiana Supreme Court Court reduced by half a forty year sentence imposed on a defendant who had fallen asleep in a dentist's office (either drunk or drugged) while waiting for an appointment. The police were called after staff was unable to wake him. A weapon was found along with drug paraphernalia.

He was charged and convicted of felon in possession of a firearm and being a habitual offender.

The court found that twenty years was an "adequate response" to the situation. (Mike Frisch)

July 22, 2011 in Law & Society | Permalink | Comments (3) | TrackBack (0)

Monday, July 18, 2011

Meat Samosa Litigation Continues

The New Jersey Appellate Division has reversed in part the grant of summary judgment to a caterer  defendant on the following allegations:

Plaintiffs, sixteen Hindu vegetarians, appeal from an order of summary judgment entered against them dismissing their action premised upon allegations of negligence, negligent infliction of emotional distress, consumer fraud, products liability, and breach of express and implied warranties arising when defendant Asha Enterprises, L.L.C. d/b/a Moghul Express & Catering Co. (Mogul Express), an Indian restaurant, filled their order for vegetarian samosas with meat-filled samosa causing spiritual injuries resulting in damages.

The court held that pre-discovery judgment could not be granted on the breach of express warranty claim. (Mike Frisch)

July 18, 2011 in Law & Business, Law & Society | Permalink | Comments (0) | TrackBack (0)