U.S. Fifth Circuit: August 2009 Archives
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August 2009 Archives

APS Capital Corp. v. Mesa Air Grp. Inc., No. 08-50770

In a breach of contract action regarding the resale of trade claims and bank debt, summary judgment for Defendant is vacated, where 1) the agreement was ambiguous and required extrinsic evidence to be interpreted; and 2) Defendant did not produce sufficient evidence of industry standards to show that the agreement could not be definite enough to be enforceable.

Read APS Capital Corp. v. Mesa Air Grp. Inc., No. 08-50770

Appellate Information

Filed August 20, 2009

Judges

Opinion by Judge Higginbotham

US v. Whitelaw, No. 08-50346

In a theft prosecution, defendant's sentence imposed upon revocation of his term of supervised release is affirmed where defendant: 1) failed to show that the district court imposed a consecutive sentence without knowledge that it could impose a concurrent sentence; and 2) failed to show that the imposition of a consecutive sentence upon the violation of supervised release violated the terms of his plea agreement.

Read US v. Whitelaw, No. 08-50346

Appellate Information

Filed August 19, 2009

Judges

Opinion by Judge Davis

Curr-Spec Ptnrs., L.P. v. Comm'r. of Int'l. Rev., No. 08-60815

In a petition in Tax Court for review of a Final Partnership Administrative Adjustment (FPAA) issued to Petitioner by the IRS, the denial of the petition is affirmed where Section 6229(a) of the Internal Revenue Code does not establish an independent statute of limitations for issuing FPAAs.

Read Curr-Spec Ptnrs., L.P. v. Comm'r. of Int'l. Rev., No. 08-60815

Appellate Information

Filed August 12, 2009

Judges

Opinion by Judge Wiener

US v. Diggs, No. 08-10658

In a challenge to petitioner's restitution payments under the Inmate Financial Responsibility Program, denial of relief is vacated where challenges to Bureau of Prisons programs must be brought under 28 U.S.C. section 2241 after all administrative remedies have been exhausted.

Read US v. Diggs, No. 08-10658

Appellate Information

Filed August 11, 2009

Judges

Opinion by Judge Smith

Fletcher v. Outlaw, No. 08-40713

In a murder prosecution in military court, the denial of petitioner's habeas petition is affirmed where, when an argument has been briefed before a military court, full and fair review exists even if the military court summarily disposes of the issue.

Read Fletcher v. Outlaw, No. 08-40713

Appellate Information

Filed August 7, 2009

Judges

Opinion by Judge Garza

Sanders-Burns v. Plano, No. 08-40459

In a 42 U.S.C. section 1983 action alleging excessive force by police, summary judgment for defendants is affirmed in part where plaintiff failed to produce evidence demonstrating that defendant-city's training policy procedures were inadequate. The ruling reversed in part where plaintiff's error of naming defendant-officer in his individual capacity was an actual mistake, and plaintiff, by attempting to amend the complaint, was not merely attempting a strategic change.

Read Sanders-Burns v. Plano, No. 08-40459

Appellate Information

Filed August 7, 2009

Judges

Opinion by Judge Stewart

US v. Neal, No. 08-30693

Defendant's firearm possession sentence is vacated where the district court erroneously calculated defendant's Sentencing Guidelines range by relying on defendant's mere possession of narcotics to justify the enhancements under U.S.S.G. sections 4B1.4(b)(3) & (c)(2).

Read US v. Neal, No. 08-30693

Appellate Information

Filed August 7, 2009

Judges

Opinion by Judge Garza

James v. Harris County, No. 07-20725

In a 42 U.S.C. section 1983 action alleging excessive force by the police, judgment as a matter of law in favor of defendant-county is affirmed where a reasonable jury could not find that the county's alleged policy was the moving force behind the officer's actions.

Read James v. Harris County, No. 07-20725

Appellate Information

Filed August 4, 2009

Judges

Opinion by Judge Jolly

In a breach of contract action concerning mold remediation, summary judgment for Defendant is affirmed, where Louisiana's rule of absolute nullity for a contracting agreement entered into without the benefit of a contractor's license limited Plaintiff's recovery to "the actual cost of materials, services and labor."

Read Tradewinds Env'tl. Restoration, Inc. v. St. Tammany Park LLC, No. 08-30729

Appellate Information

Filed August 4, 2009

Judges

Opinion by Judge Clement

Evans v. Cain, No. 07-30861

In a rape prosecution, the denial of Petitioner's habeas petition is affirmed, where Petitioner sought a stay of federal habeas proceedings pending state habeas review, but: 1) he did not argue that he would be barred from obtaining re-review in the state court by the Court of Appeals' continued review and disposition of his habeas case; and 2) the District Court properly deferred to the state court's postconviction decision that the state trial court had denied Petitioner's motion and therefore had jurisdiction to sentence Petitioner.

Read Evans v. Cain, No. 07-30861

Appellate Information

Filed August 4, 2009

Judges

Per Curiam

Merced v. Kasson, No. 08-10358

In an action under the Texas Religious Freedom and Restoration Act challenging an ordinance preventing the keeping and slaughter of four-legged animals within defendant-city's borders on the ground that it burdened the Santeria religion, judgment for defendant is reversed where the city had no evidence that plaintiff's animal sacrifices undermined any of its interests.

Read Merced v. Kasson, No. 08-10358

Appellate Information

Filed July 31, 2009

Judges

Opinion by Judge Elrod

Hardy v. Quarterman, No. 08-40161

In a sexual assault prosecution, denial of a habeas petition as untimely is reversed where petitioner was entitled to equitable tolling because he suffered a significant state-created delay when the state failed in its legal duty to inform him that his state court habeas petition had been denied.

Read Hardy v. Quarterman, No. 08-40161

Appellate Information

Filed August 3, 2009

Judges

Per Curiam

Gonzalez v. Kay, No. 08-20544

In an action claiming that a debt collection letter violated the Fair Debt Collection Practices Act (FDCPA), the dismissal of the complaint is reversed where the "least sophisticated consumer" reading the letter might be deceived into thinking that a lawyer was involved in the debt collection.

Read Gonzalez v. Kay, No. 08-20544

Appellate Information

Filed August 3, 2009

Judges

Opinion by Judge Prado