Tenth Circuit Summaries
I practice in state court, and I mean for this blog to be primarily a repository for state appellate information. But I know a lot of you practice in both federal and state court. So when they come my way, I will post tenth circuit summaries.
A big thanks to Bonnie Hill, at the Office of the Utah Attorney General, for the following tenth circuit summaries:
CRIMINAL LAW & PROCEDURE, SENTENCING
US v. Humphries, No. 05-1255 (10th Cir. December 02, 2005)Defendant's sentence following conviction for being a felon in possession of a firearm is affirmed over his argument that four juvenile convictions which had been consolidated for sentencing should be considered a single prior conviction for purposes of sentencing under the guidelines.
CRIMINAL LAW & PROCEDURE
US v. Collins, No. 04-2002 (10th Cir. December 05, 2005)Conviction on three counts of sexual abuse is vacated where defendant was deprived of counsel at his competency hearing when defendant's counsel stood silent, citing a motion to withdraw, and did not subject the prosecution's case to adversarial testing.
CRIMINAL LAW & PROCEDURE, SENTENCING
US v. Dowell, No. 03-1341 (10th Cir. December 07, 2005)Defendant's convictions and sentence for destroying government property by fire and forcibly interfering with IRS employees and administration are affirmed over his claims of error regarding violation of his due process rights, prosecutorial misconduct, and Booker sentencing error. Also, the trial court properly applied the terrorism enhancement to Dowell's sentence because the jury found beyond a reasonable doubt that Dowell interfered with the IRS and his conduct created a substantial risk of injury to others.
ATTORNEY'S FEES, COMMERCIAL LAW, COMMUNICATIONS LAW, CONTRACTS, DISPUTE RESOLUTION & ARBITRATION, PROPERTY LAW & REAL ESTATE, SANCTIONS
Dominion Video Satellite, Inc. v. Echostar Satellite L.L.C., No. 04-1465, 05-1080 (10th Cir. December 08, 2005)Attorneys fees award for plaintiff, imposition of sanctions on defense counsel, and confirmation of an arbitration award in an underlying case for breach of a lease agreement between the parties are affirmed where defendant unreasonably and vexatiously extended arbitration hearings and court proceedings.
The court held that federal law does not preempt Dominion's claim for breach of contract, the award does not violate the First Amendment's prohibition on content-based restrictions and prior restraints, the agreement provides for damages for breach, and that preclusion or the doctrine of legal impossibility does not bar the award. Also, Echostar did not take advantage of the process afforded to it regarding the an opportunity to contest the attorney fees.
CRIMINAL LAW & PROCEDURE, SENTENCING
Wilson v. Jones, No. 02-6384 (10th Cir. December 08, 2005)
Denial of inmate defendant's petition for a writ of habeas corpus is reversed because defendant's due process rights were violated when a misconduct conviction caused him to be demoted to a non-credit-earning prisoner where no evidence supported the misconduct conviction. The conviction denied Wilson of a liberty interest because it extended the length of his sentence by slowing the rate at which he could collect credits toward early release. Wilson's request that costs for copying court documents for his post-conviction proceeding does not support a conviction for Class X misconduct.
CONTRACTS, HEALTH LAW, INSURANCE LAW, REMEDIES
Gillogly v. General Electric Capital Assurance Co., No. 04-7026, 04-7032, 04-7042 (10th Cir. December 13, 2005)Summary judgment for plaintiff in a breach of contract claim and entry of judgment in favor of plaintiff on a bad faith claim are reversed where defendant's long term care insurance policy did not qualify plaintiff's care facility as a "Nursing Home," thus General Electric did not breach its contract with Gillogly when it denied his request for benefits.
CIVIL RIGHTS, CRIMINAL LAW & PROCEDURE, HEALTH LAW
Martinez v. Garden, No. 05-4019 (10th Cir. December 14, 2005)Dismissal of inmate plaintiff's civil rights complaint for failure to state a claim on which relief may be granted is reversed where the district court's summary conclusion that defendants had not shown deliberate indifference to plaintiff's medical condition was unsupported by the evidence. ÂKnowledge of his medical condition, coupled with the alleged failure to inform him of medical appointments or to arrange transportation, may give rise to an inference that defendants acted with deliberate indifference.Â
CONSTITUTIONAL LAW, CRIMINAL LAW & PROCEDURE
US v. DeBerry, No. 04-1532 (10th Cir. December 14, 2005)Order of dismissal with prejudice of a prosecution of defendants for assault on a fellow inmate is reversed where a discovery order issued by the district court regarding defendants' claims of selective prosecution was erroneous. The court found no evidence that Deberry and two other African American inmates, who were all indicted for attacking a Native American inmate, were treated any differently than Native American inmates who were prosecuted for attacking an African American, and thus the district court should not have granted their discovery motion.
CRIMINAL LAW & PROCEDURE, EVIDENCE
US v. Alvarado, No. 05-4064 (10th Cir. December 14, 2005)Denial of defendant's motion to suppress evidence in a drug possession case is affirmed over defendant's claim of error that the district court erred in holding that a police stop of his vehicle was reasonable based on a single instance of crossing over the right fog line of the highway. The court concluded that Alvarado's car passing over the fog line once gave officers reasonable suspicion to stop him because he failed to show any factors such as high winds or potholes made it impractical for him to keep his car in one lane. Thus, cocaine found in his car after the initial stop was properly admitted as evidence.
ADMINISTRATIVE LAW, GOVERNMENT BENEFITS, HEALTH LAW, LABOR & EMPLOYMENT LAW
Fischer-Ross v. Barnhart, No. 04-3509 (10th Cir. December 19, 2005)Grant of review of administrative denial of disability benefits is reversed where an administrative law judge's findings at latter steps of his analysis, coupled with the medical record, conclusively precluded plaintiff's qualification for benefits, and any error in reasoning was harmless.
CRIMINAL LAW & PROCEDURE, SENTENCING
US v. Plakio, No. 04-3166 (10th Cir. December 19, 2005)In an per curiam opinion, the Circuit Court found that Plakio's prior conviction on drug charges does not qualify as a felony for purposes of the sentencing guidelines because the state court could not have imposed a sentence of more than one year. Thus, the district court erred when it used the prior offense to enhance Plakio's sentence for being a felon in possession of a firearm.
CRIMINAL LAW & PROCEDURE, EVIDENCE, SENTENCING
US v. Williams, No. 04-3180 (10th Cir. December 20, 2005)Defendant's sentence for distribution of a mixture containing a detectable quantity of cocaine is affirmed over his claims of error regarding insufficiency of the evidence with regards to a weapons possession enhancement, and Booker error. The court held that Williams' failure to claim that he was not in possession of his firearm during commission of the crime or that he needed the firearm for protection unrelated to his drug trafficking activities supports the district court's finding of a temporal and spatial connection between Williams, the gun and the drug activity. As for DefendantÂs claim that sentencing violated Booker, it was determined that the district court erred when it treated the sentencing guidelines as mandatory, but the error was considered harmless because DefendantÂs sentence fell within the national norm for the offense and there is no evidence supporting a lower sentence.
CRIMINAL LAW & PROCEDURE, EVIDENCE, SENTENCING
US v. Waldroop, No. 04-6308 (10th Cir. December 20, 2005)Defendant's conviction and sentence for bank fraud and conspiracy to commit bank fraud is affirmed over his claims of error regarding insufficiency of the evidence and Booker sentencing error even though the court concluded that the district court erred when it enhanced his sentence based on judge-found facts. The error was considered harmless because there was no evidence that the court would have imposed a lower sentence if it had exercised greater discretion. In an opinion written by Judge Carlos F. Lucero, the court found that none of the nominee loans Waldroop obtained from First State Bank showed that he was the ultimate recipient of the loan or that the collateral used for the loan was owned by him or his company, and testimony by the loan officer that the bank would no longer lend Waldroop money because he had exceeded his loan limit supports his conviction for bank fraud and conspiracy to commit bank fraud.
CIVIL RIGHTS, EVIDENCE, INSURANCE LAW, LABOR & EMPLOYMENT LAW
Bryant v. Farmers Ins. Exch., No. 03-3234 (10th Cir. December 21, 2005)Summary judgment for defendant on age and gender discrimination claims is reversed where plaintiff's evidence calling into question the veracity of defendant's nondiscriminatory reasons for firing her are sufficient to establish pretext for summary judgment purposes. Bryant claimed Farmer's discriminated against her based on age and gender. The court found that the district court erroneously excluded portions of Byrant's affidavit concerning performance audits because her statements refer to her personal knowledge of the audits and the calculation of averages based on the audits does not require special skills or training. Evidence that poor performance in her department was due to the person who eventually replaced her and that the audits were inaccurate and unreliable creates an issue as to why Bryant was fired.
CONTRACTS, CORPORATION & ENTERPRISE LAW, FOOD & BEVERAGES, INJURY AND TORT LAW, MANUFACTURING
Pepsi-cola Bottling Co. of Pittsburgh v. Pepsico, Inc., No. 03-3134 (10th Cir. December 21, 2005)Summary judgment in favor of defendants on plaintiff's breach of contract claim and its interference with current and prospective business relations claim is reversed, in part. In a case by plaintiff, a soft drink bottler, involving its Exclusive Bottling Appointment and syrup appointment contracts with defendant, Pittsburgh Pepsi claimed PepsiCo breached its contract when PepsiCo refused to extend contracts to bottle new products, and claimed Bottling Group tortuously interfered with Pittsburgh Pepsi's prospective business relations with Southeast Kansas Vending. In an opinion by Judge Mary Beck Briscoe, the court held that PepsiCo's repeated decision to offer Pittsburgh Pepsi bottling rights to new products did not create an implied-in-fact contract to continue offering Pittsburgh Pepsi contracts for new products because the subject matter covered in the implied contract would cover subject matter addressed explicitly in at least 14 previous contracts. Evidence that Bottling Group may have encouraged Southeast to transship Pepsi into Pittsburgh's territory creates an issue as to the tortuous interference claim. Reversed in part and remanded to district court for further proceedings.
CRIMINAL LAW & PROCEDURE, EVIDENCE, SENTENCING
US v. Herron, No. 04-1232 (10th Cir. December 21, 2005)Defendant's conviction and sentence for being a felon in possession of a firearm is affirmed over his claims of error regarding: 1) admission of evidence; 2) denial of a mistrial motion; 3) overruling of objections by defendant at final argument; and 4) sentencing issues including a Booker claim. In an opinion written by Judge Hartz, the court held that Herron was not harmed by the district court's admission of parole conditions because those conditions were presented to the jury from other sources, including Herron's own attorney. A witness's testimony regarding a parolee with a violent history does not entitle Herron to a retrial because although the witness does not name the parolee, the previous eight pages of testimony focused on a different parolee, and immediately after the comment was made, the district court ordered the jury to disregard any reference to Herron's history. The district court's erroneous treatment of the sentencing guidelines as mandatory is harmless because there is no evidence it would exercise greater leniency if given the opportunity.
CRIMINAL LAW & PROCEDURE, FAMILY LAW, TAX LAW
Aranda v. Comm'r of Internal Revenue, No. 04-9000 (10th Cir. December 21, 2005)Tax Court's order declining to grant plaintiff additional innocent-spouse relief from certain tax liabilities is affirmed over plaintiff's contention that tax relief she received under 26 U.S.C. section 6015 abated her underlying tax liability, resulting additionally in a reduction in what she owed in penalties and interest. Aranda claimed the IRS Appeals Office grant of innocent-spouse relief from her 1985 and 1986 joint tax liabilities applies to her underlying tax liability, not just the penalties and interest. The court found evidence that the Appeals Office granted relief for the same amount as the penalties and interest shows that it intended the relief to apply to the penalties and interest.
INJURY AND TORT LAW, MANUFACTURING, PRODUCT LIABILITY, PROPERTY LAW & REAL ESTATE
Loughridge v. Goodyear Tire & Rubber Co., No. 04-1261, 04-1263 (10th Cir. December 21, 2005)Trial court's amended judgment of damages for homeowner plaintiffs' on their claims involving allegedly defective heating systems is reversed as to certain homeowners' claims with instructions to reinstate the jury's verdict and to award prejudgment interest and as to additional homeowners with instructions to conduct a new trial on their claims. Homeowners claimed Goodyear was liable for the removal of defective tubing it manufactured for their radiant heating systems, diminished home values and other costs associated with the tubing. The court held that the jury's verdicts finding that Heatway, the company that sold the systems, was 50 percent at fault is consistent with its zero percent liability finding for the homeowners' civil conspiracy claims because the jury instructions required the jury to determine Heatway's fault as a nonparty to the conspiracy claims against Goodyear. Evidence that three named homeowners/plaintiffs with the same heating system sold their homes for much less than the homes would have been worth with a functioning system supported the jury's award of reasonable costs and diminished market value. Thus the district court erred when it reduced the award. Affirmed in part, reversed in part.
CIVIL RIGHTS; CRIMINAL LAW & PROCEDURE; INJURY & TORT LAW; ADMINISTRATIVE LAW
Norton v. City of Marietta, No. 04-7133 (10th Cir. December 21, 2005) (per cuiriam) Norton claimed officers assaulted him while he was incarcerated at Love County Jail in Marietta. The circuit court, in a per curiam opinion, held that the district court correctly granted the city summary judgment before the pre-trial order was finalized because the new complaints alleged in Norton's proposed pre-trial order were not properly included in an amended complaint and thus were not properly before the court. Conflicting evidence of whether Norton was combative with officers and whether their use of pepper spray was justifiable creates issues of material fact. Affirmed in part and reversed in part. Remanded for further proceedings.
CRIMINAL LAW & PROCEDURE, SENTENCING
U.S. v. Marshall, No. 04-2301 (10th Cir. December 23, 2005)Marshall claimed the trial court should not have included the quantity of methamphetamine found in his home when it calculated his sentence for selling drugs to an informant. The court held that Marshall admitted to intending to distribute less than 50 grams of methamphetamine, an amount that includes the drugs found at his home, and thus the sentence does not violate Blakely.
CIVIL RIGHTS, GOVERNMENT LAW, INJURY AND TORT LAW
Perez v. Unified Gov't of Wyandotte County, No. 04-3397 (10th Cir. December 28, 2005)Denial of firefighter-defendant's motion for summary judgment pursuant to qualified immunity in a civil rights claim under 42 U.S.C. section 1983, involving a deadly car accident with a firetruck, is reversed where defendant was responding to an emergency call and it was not alleged that defendant intended to harm plaintiff. In an opinion written by Judge Lucero, the court found that Mots, a firefighter, is immune from claims that he violated Becerra's constitutional rights when Mots' fire truck collided with Bacerra's car because Mots was responding to an emergency call and it is not alleged that Mots intended to harm Becerra.
CIVIL PROCEDURE, INJURY AND TORT LAW, LABOR & EMPLOYMENT LAW, REMEDIES
Sorbo v. United Parcel Serv., No. 03-1455, 04-1251, 05-1016 (10th Cir. December 29, 2005)Summary judgment and award of costs for employer-defendant in an employment case regarding age discrimination, reverse race and sex discrimination claims is vacated in part as to the award of costs where the district court included in the award matters that are not within the scope of the applicable law. Sorbo claimed United Parcel Service discriminated against him based on age and gender. The court found that the district court did not improperly limit discovery or err when it denied Sorbo's motion to compel because Sorbo never asked the court to reconsider previous discovery rulings and never served follow-up discovery requests after learning that the person ultimately responsible for his termination is not the man originally stated by the company. The district court erroneously awarded UPS fees and expenses outside the scope of § 1920 and thus remands to identify which of the awards is proper.
CRIMINAL LAW & PROCEDURE, EVIDENCE, SENTENCING
US v. Cherry, No. 05-1043 (10th Cir. December 29, 2005)Defendant's conviction and sentence for possession with intent to distribute crack cocaine is affirmed over his claims of error regarding the admissibility of evidence of a prior conviction and sentencing error pursuant to Booker.
CONTRACTS, INJURY AND TORT LAW, INSURANCE LAW
Clark v. State Farm Mut. Auto. Ins. Co., No. 04-1022, 04-1023 (10th Cir. December 30, 2005)Judgment and award of wage loss benefits for plaintiff, an injured pedestrian hit by a car insured by State Farm, in a class-action suit against defendant-insurer to collect extended personal injury protection benefits arising from an automobile accident is affirmed where there was no abuse of discretion in district court's findings regarding the award and its policy reformation. The court found that State Farm was required to offer the insurance policy purchaser extended personal injury protection. Under the terms of the insured's policy, payment would never exceed $200,000 and thus the district court properly refused to impose the payment cap.
A big thanks to Bonnie Hill, at the Office of the Utah Attorney General, for the following tenth circuit summaries:
CRIMINAL LAW & PROCEDURE, SENTENCING
US v. Humphries, No. 05-1255 (10th Cir. December 02, 2005)Defendant's sentence following conviction for being a felon in possession of a firearm is affirmed over his argument that four juvenile convictions which had been consolidated for sentencing should be considered a single prior conviction for purposes of sentencing under the guidelines.
CRIMINAL LAW & PROCEDURE
US v. Collins, No. 04-2002 (10th Cir. December 05, 2005)Conviction on three counts of sexual abuse is vacated where defendant was deprived of counsel at his competency hearing when defendant's counsel stood silent, citing a motion to withdraw, and did not subject the prosecution's case to adversarial testing.
CRIMINAL LAW & PROCEDURE, SENTENCING
US v. Dowell, No. 03-1341 (10th Cir. December 07, 2005)Defendant's convictions and sentence for destroying government property by fire and forcibly interfering with IRS employees and administration are affirmed over his claims of error regarding violation of his due process rights, prosecutorial misconduct, and Booker sentencing error. Also, the trial court properly applied the terrorism enhancement to Dowell's sentence because the jury found beyond a reasonable doubt that Dowell interfered with the IRS and his conduct created a substantial risk of injury to others.
ATTORNEY'S FEES, COMMERCIAL LAW, COMMUNICATIONS LAW, CONTRACTS, DISPUTE RESOLUTION & ARBITRATION, PROPERTY LAW & REAL ESTATE, SANCTIONS
Dominion Video Satellite, Inc. v. Echostar Satellite L.L.C., No. 04-1465, 05-1080 (10th Cir. December 08, 2005)Attorneys fees award for plaintiff, imposition of sanctions on defense counsel, and confirmation of an arbitration award in an underlying case for breach of a lease agreement between the parties are affirmed where defendant unreasonably and vexatiously extended arbitration hearings and court proceedings.
The court held that federal law does not preempt Dominion's claim for breach of contract, the award does not violate the First Amendment's prohibition on content-based restrictions and prior restraints, the agreement provides for damages for breach, and that preclusion or the doctrine of legal impossibility does not bar the award. Also, Echostar did not take advantage of the process afforded to it regarding the an opportunity to contest the attorney fees.
CRIMINAL LAW & PROCEDURE, SENTENCING
Wilson v. Jones, No. 02-6384 (10th Cir. December 08, 2005)
Denial of inmate defendant's petition for a writ of habeas corpus is reversed because defendant's due process rights were violated when a misconduct conviction caused him to be demoted to a non-credit-earning prisoner where no evidence supported the misconduct conviction. The conviction denied Wilson of a liberty interest because it extended the length of his sentence by slowing the rate at which he could collect credits toward early release. Wilson's request that costs for copying court documents for his post-conviction proceeding does not support a conviction for Class X misconduct.
CONTRACTS, HEALTH LAW, INSURANCE LAW, REMEDIES
Gillogly v. General Electric Capital Assurance Co., No. 04-7026, 04-7032, 04-7042 (10th Cir. December 13, 2005)Summary judgment for plaintiff in a breach of contract claim and entry of judgment in favor of plaintiff on a bad faith claim are reversed where defendant's long term care insurance policy did not qualify plaintiff's care facility as a "Nursing Home," thus General Electric did not breach its contract with Gillogly when it denied his request for benefits.
CIVIL RIGHTS, CRIMINAL LAW & PROCEDURE, HEALTH LAW
Martinez v. Garden, No. 05-4019 (10th Cir. December 14, 2005)Dismissal of inmate plaintiff's civil rights complaint for failure to state a claim on which relief may be granted is reversed where the district court's summary conclusion that defendants had not shown deliberate indifference to plaintiff's medical condition was unsupported by the evidence. ÂKnowledge of his medical condition, coupled with the alleged failure to inform him of medical appointments or to arrange transportation, may give rise to an inference that defendants acted with deliberate indifference.Â
CONSTITUTIONAL LAW, CRIMINAL LAW & PROCEDURE
US v. DeBerry, No. 04-1532 (10th Cir. December 14, 2005)Order of dismissal with prejudice of a prosecution of defendants for assault on a fellow inmate is reversed where a discovery order issued by the district court regarding defendants' claims of selective prosecution was erroneous. The court found no evidence that Deberry and two other African American inmates, who were all indicted for attacking a Native American inmate, were treated any differently than Native American inmates who were prosecuted for attacking an African American, and thus the district court should not have granted their discovery motion.
CRIMINAL LAW & PROCEDURE, EVIDENCE
US v. Alvarado, No. 05-4064 (10th Cir. December 14, 2005)Denial of defendant's motion to suppress evidence in a drug possession case is affirmed over defendant's claim of error that the district court erred in holding that a police stop of his vehicle was reasonable based on a single instance of crossing over the right fog line of the highway. The court concluded that Alvarado's car passing over the fog line once gave officers reasonable suspicion to stop him because he failed to show any factors such as high winds or potholes made it impractical for him to keep his car in one lane. Thus, cocaine found in his car after the initial stop was properly admitted as evidence.
ADMINISTRATIVE LAW, GOVERNMENT BENEFITS, HEALTH LAW, LABOR & EMPLOYMENT LAW
Fischer-Ross v. Barnhart, No. 04-3509 (10th Cir. December 19, 2005)Grant of review of administrative denial of disability benefits is reversed where an administrative law judge's findings at latter steps of his analysis, coupled with the medical record, conclusively precluded plaintiff's qualification for benefits, and any error in reasoning was harmless.
CRIMINAL LAW & PROCEDURE, SENTENCING
US v. Plakio, No. 04-3166 (10th Cir. December 19, 2005)In an per curiam opinion, the Circuit Court found that Plakio's prior conviction on drug charges does not qualify as a felony for purposes of the sentencing guidelines because the state court could not have imposed a sentence of more than one year. Thus, the district court erred when it used the prior offense to enhance Plakio's sentence for being a felon in possession of a firearm.
CRIMINAL LAW & PROCEDURE, EVIDENCE, SENTENCING
US v. Williams, No. 04-3180 (10th Cir. December 20, 2005)Defendant's sentence for distribution of a mixture containing a detectable quantity of cocaine is affirmed over his claims of error regarding insufficiency of the evidence with regards to a weapons possession enhancement, and Booker error. The court held that Williams' failure to claim that he was not in possession of his firearm during commission of the crime or that he needed the firearm for protection unrelated to his drug trafficking activities supports the district court's finding of a temporal and spatial connection between Williams, the gun and the drug activity. As for DefendantÂs claim that sentencing violated Booker, it was determined that the district court erred when it treated the sentencing guidelines as mandatory, but the error was considered harmless because DefendantÂs sentence fell within the national norm for the offense and there is no evidence supporting a lower sentence.
CRIMINAL LAW & PROCEDURE, EVIDENCE, SENTENCING
US v. Waldroop, No. 04-6308 (10th Cir. December 20, 2005)Defendant's conviction and sentence for bank fraud and conspiracy to commit bank fraud is affirmed over his claims of error regarding insufficiency of the evidence and Booker sentencing error even though the court concluded that the district court erred when it enhanced his sentence based on judge-found facts. The error was considered harmless because there was no evidence that the court would have imposed a lower sentence if it had exercised greater discretion. In an opinion written by Judge Carlos F. Lucero, the court found that none of the nominee loans Waldroop obtained from First State Bank showed that he was the ultimate recipient of the loan or that the collateral used for the loan was owned by him or his company, and testimony by the loan officer that the bank would no longer lend Waldroop money because he had exceeded his loan limit supports his conviction for bank fraud and conspiracy to commit bank fraud.
CIVIL RIGHTS, EVIDENCE, INSURANCE LAW, LABOR & EMPLOYMENT LAW
Bryant v. Farmers Ins. Exch., No. 03-3234 (10th Cir. December 21, 2005)Summary judgment for defendant on age and gender discrimination claims is reversed where plaintiff's evidence calling into question the veracity of defendant's nondiscriminatory reasons for firing her are sufficient to establish pretext for summary judgment purposes. Bryant claimed Farmer's discriminated against her based on age and gender. The court found that the district court erroneously excluded portions of Byrant's affidavit concerning performance audits because her statements refer to her personal knowledge of the audits and the calculation of averages based on the audits does not require special skills or training. Evidence that poor performance in her department was due to the person who eventually replaced her and that the audits were inaccurate and unreliable creates an issue as to why Bryant was fired.
CONTRACTS, CORPORATION & ENTERPRISE LAW, FOOD & BEVERAGES, INJURY AND TORT LAW, MANUFACTURING
Pepsi-cola Bottling Co. of Pittsburgh v. Pepsico, Inc., No. 03-3134 (10th Cir. December 21, 2005)Summary judgment in favor of defendants on plaintiff's breach of contract claim and its interference with current and prospective business relations claim is reversed, in part. In a case by plaintiff, a soft drink bottler, involving its Exclusive Bottling Appointment and syrup appointment contracts with defendant, Pittsburgh Pepsi claimed PepsiCo breached its contract when PepsiCo refused to extend contracts to bottle new products, and claimed Bottling Group tortuously interfered with Pittsburgh Pepsi's prospective business relations with Southeast Kansas Vending. In an opinion by Judge Mary Beck Briscoe, the court held that PepsiCo's repeated decision to offer Pittsburgh Pepsi bottling rights to new products did not create an implied-in-fact contract to continue offering Pittsburgh Pepsi contracts for new products because the subject matter covered in the implied contract would cover subject matter addressed explicitly in at least 14 previous contracts. Evidence that Bottling Group may have encouraged Southeast to transship Pepsi into Pittsburgh's territory creates an issue as to the tortuous interference claim. Reversed in part and remanded to district court for further proceedings.
CRIMINAL LAW & PROCEDURE, EVIDENCE, SENTENCING
US v. Herron, No. 04-1232 (10th Cir. December 21, 2005)Defendant's conviction and sentence for being a felon in possession of a firearm is affirmed over his claims of error regarding: 1) admission of evidence; 2) denial of a mistrial motion; 3) overruling of objections by defendant at final argument; and 4) sentencing issues including a Booker claim. In an opinion written by Judge Hartz, the court held that Herron was not harmed by the district court's admission of parole conditions because those conditions were presented to the jury from other sources, including Herron's own attorney. A witness's testimony regarding a parolee with a violent history does not entitle Herron to a retrial because although the witness does not name the parolee, the previous eight pages of testimony focused on a different parolee, and immediately after the comment was made, the district court ordered the jury to disregard any reference to Herron's history. The district court's erroneous treatment of the sentencing guidelines as mandatory is harmless because there is no evidence it would exercise greater leniency if given the opportunity.
CRIMINAL LAW & PROCEDURE, FAMILY LAW, TAX LAW
Aranda v. Comm'r of Internal Revenue, No. 04-9000 (10th Cir. December 21, 2005)Tax Court's order declining to grant plaintiff additional innocent-spouse relief from certain tax liabilities is affirmed over plaintiff's contention that tax relief she received under 26 U.S.C. section 6015 abated her underlying tax liability, resulting additionally in a reduction in what she owed in penalties and interest. Aranda claimed the IRS Appeals Office grant of innocent-spouse relief from her 1985 and 1986 joint tax liabilities applies to her underlying tax liability, not just the penalties and interest. The court found evidence that the Appeals Office granted relief for the same amount as the penalties and interest shows that it intended the relief to apply to the penalties and interest.
INJURY AND TORT LAW, MANUFACTURING, PRODUCT LIABILITY, PROPERTY LAW & REAL ESTATE
Loughridge v. Goodyear Tire & Rubber Co., No. 04-1261, 04-1263 (10th Cir. December 21, 2005)Trial court's amended judgment of damages for homeowner plaintiffs' on their claims involving allegedly defective heating systems is reversed as to certain homeowners' claims with instructions to reinstate the jury's verdict and to award prejudgment interest and as to additional homeowners with instructions to conduct a new trial on their claims. Homeowners claimed Goodyear was liable for the removal of defective tubing it manufactured for their radiant heating systems, diminished home values and other costs associated with the tubing. The court held that the jury's verdicts finding that Heatway, the company that sold the systems, was 50 percent at fault is consistent with its zero percent liability finding for the homeowners' civil conspiracy claims because the jury instructions required the jury to determine Heatway's fault as a nonparty to the conspiracy claims against Goodyear. Evidence that three named homeowners/plaintiffs with the same heating system sold their homes for much less than the homes would have been worth with a functioning system supported the jury's award of reasonable costs and diminished market value. Thus the district court erred when it reduced the award. Affirmed in part, reversed in part.
CIVIL RIGHTS; CRIMINAL LAW & PROCEDURE; INJURY & TORT LAW; ADMINISTRATIVE LAW
Norton v. City of Marietta, No. 04-7133 (10th Cir. December 21, 2005) (per cuiriam) Norton claimed officers assaulted him while he was incarcerated at Love County Jail in Marietta. The circuit court, in a per curiam opinion, held that the district court correctly granted the city summary judgment before the pre-trial order was finalized because the new complaints alleged in Norton's proposed pre-trial order were not properly included in an amended complaint and thus were not properly before the court. Conflicting evidence of whether Norton was combative with officers and whether their use of pepper spray was justifiable creates issues of material fact. Affirmed in part and reversed in part. Remanded for further proceedings.
CRIMINAL LAW & PROCEDURE, SENTENCING
U.S. v. Marshall, No. 04-2301 (10th Cir. December 23, 2005)Marshall claimed the trial court should not have included the quantity of methamphetamine found in his home when it calculated his sentence for selling drugs to an informant. The court held that Marshall admitted to intending to distribute less than 50 grams of methamphetamine, an amount that includes the drugs found at his home, and thus the sentence does not violate Blakely.
CIVIL RIGHTS, GOVERNMENT LAW, INJURY AND TORT LAW
Perez v. Unified Gov't of Wyandotte County, No. 04-3397 (10th Cir. December 28, 2005)Denial of firefighter-defendant's motion for summary judgment pursuant to qualified immunity in a civil rights claim under 42 U.S.C. section 1983, involving a deadly car accident with a firetruck, is reversed where defendant was responding to an emergency call and it was not alleged that defendant intended to harm plaintiff. In an opinion written by Judge Lucero, the court found that Mots, a firefighter, is immune from claims that he violated Becerra's constitutional rights when Mots' fire truck collided with Bacerra's car because Mots was responding to an emergency call and it is not alleged that Mots intended to harm Becerra.
CIVIL PROCEDURE, INJURY AND TORT LAW, LABOR & EMPLOYMENT LAW, REMEDIES
Sorbo v. United Parcel Serv., No. 03-1455, 04-1251, 05-1016 (10th Cir. December 29, 2005)Summary judgment and award of costs for employer-defendant in an employment case regarding age discrimination, reverse race and sex discrimination claims is vacated in part as to the award of costs where the district court included in the award matters that are not within the scope of the applicable law. Sorbo claimed United Parcel Service discriminated against him based on age and gender. The court found that the district court did not improperly limit discovery or err when it denied Sorbo's motion to compel because Sorbo never asked the court to reconsider previous discovery rulings and never served follow-up discovery requests after learning that the person ultimately responsible for his termination is not the man originally stated by the company. The district court erroneously awarded UPS fees and expenses outside the scope of § 1920 and thus remands to identify which of the awards is proper.
CRIMINAL LAW & PROCEDURE, EVIDENCE, SENTENCING
US v. Cherry, No. 05-1043 (10th Cir. December 29, 2005)Defendant's conviction and sentence for possession with intent to distribute crack cocaine is affirmed over his claims of error regarding the admissibility of evidence of a prior conviction and sentencing error pursuant to Booker.
CONTRACTS, INJURY AND TORT LAW, INSURANCE LAW
Clark v. State Farm Mut. Auto. Ins. Co., No. 04-1022, 04-1023 (10th Cir. December 30, 2005)Judgment and award of wage loss benefits for plaintiff, an injured pedestrian hit by a car insured by State Farm, in a class-action suit against defendant-insurer to collect extended personal injury protection benefits arising from an automobile accident is affirmed where there was no abuse of discretion in district court's findings regarding the award and its policy reformation. The court found that State Farm was required to offer the insurance policy purchaser extended personal injury protection. Under the terms of the insured's policy, payment would never exceed $200,000 and thus the district court properly refused to impose the payment cap.
posted by Matt, Rach, Samus, Little-O, & Hank the Tank at 10:48 AM
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