Annotations 09/2012

(defendant's "position limits" rule, purportedly adopted to restrict speculative trading by capping the number of derivatives contracts a trader can hold on 28 commodities (including oil), vacated by court; rule sent back to defendant for "further proceedings"; defendant did not have clear mandate to set such limits - Dodd-Frank Act clearly and unambiguously requires defendant to conclude that such limits necessary before imposing them; before rule, limits covered only nine agricultural commodities; court noted that other aspects of Dodd-Frank Act written in vague terms). 


(based on language of written easement, easement limited in scope to ingress and egress; accordingly, installation of utility lines impermissible; easement width of 45 feet determined). 


(state ordered seizure and destruction of all cheese produced by defendant after samples tested positive for listeria and staph; after further tests revealed food borne bacteria, milk board ordered destruction of condemned cheese; defendant appealed; defendant’s first objection was the state’s failure to provide a more definitive statement to its petition which the court overruled but provided no rationale for decision; appellate court held defendant filed responsive pleadings which demonstrated understanding of petition negating need for more detail; appellate court also held that correct burden at trial was used establishing that defendant’s cheese violated the statute due to presence of pathogens making cheese an unlawful product; state had authority under police power to prevent sale of contaminated cheese through embargo before full determination of sale of unlawful product requiring condemnation; court also held testing of entire condemned inventory is not necessary to uphold condemnation as valid and minimum sample is acceptable; judgment affirmed.)


(certified question from class action lawsuit alleging violations of farm labor contractors act (FLCA); workers alleged defendants fired local workers or withdrew offers to hire local workers in order to manufacture a labor shortage to hire guest workers to perform agricultural labor; under statute employers are required to certify local workers will not be adversely affected by bringing in guest workers, which plaintiffs alleged was untrue; defendants failed to respond to plaintiffs’ motion for partial summary judgment and court granted plaintiffs’ motion and request for statutory damages of $500 per plaintiff per violation for an award of $1.85 million; the award prompted swift action by defendants seeking reconsideration of the damage award; on reconsideration, district court held that damages were discretionary and reduced damages to $235,000; on appeal, Ninth Circuit certified question to state court; court held remedial statute requires that once determined damages should be awarded, statute requires damages of $500 per plaintiff per violation; defendants argued this would result in excessive damages; court held no state public policy or due process principles require reduction of statutory damages (as opposed to punitive damages) but left interpretation of federal due process principles to federal court; court also left open question of whether aggrieved person under statute means all workers must demonstrate individual harm or whether aggrieved covers all persons statute was designed to protect).


(action brought by children to set aside warranty deed transferring 39 acres of mountain land from 98-year-old uncle to his 85-year-old niece; trial court found no evidence of any incompetence on part of uncle or undue influence by niece; court found long-term affectionate relationship between uncle and niece and previously between uncle and niece’s mother; children never mentioned concerns of incompetence when told deed would be transferred, they wanted payment for land; uncle also continued to hold farm worth more than $1 million at time of transfer; trial court denied request to set aside deed; children appealed; trial court opinion affirmed because evidence sufficient to uphold order).


(landowner was awarded $4 million jury verdict against gas well operator; operator appealed arguing lack of evidence sufficient to uphold verdict on costs of remediating temporary pit dug by operator that contained benzene and punitive damages; on appeal, court held cost projections for remediating property was not evidence because expert did not provide basis for his projection as required under state law to reveal basis supported by substantial evidence and  jury’s failure to answer interrogatory regarding diminished market value meant entire award was based on remediation, so court reversed and awarded nothing to landowner; court also reversed punitive damage award predicated on negligence because without remediation damages for negligence there is no damage award upon which punitive damages can be awarded; court upheld $38,500 damage award for failing to use due regard for his rights because issue not appealed; dissent filed arguing case should be remanded for new trial because operator admitted it had some liability for removal of contents in pit and a take-nothing judgment should not be rendered).


(grain elevator purchased grain and set-off funds due for corn and soybean purchase contracts to pay for farm inputs purchased by debtor; secured creditor of earlier perfected input liens claimed superior interest to funds in debtors’ Chapter 11 proceedings due to first perfected security interest in crops; elevator claimed Food Security Act of 1985 applied and changed the result because elevator was buyer in ordinary court and purchased grain free and clear of lien; court held creditor failed to comply with FSA procedure to protect state law liens because creditor’s notices to elevator failed to include debtor’s social security numbers and proper description of crops subject to creditor’s security interest; complete and precise compliance with notice provisions required; elevator, however, received entitled to receive only farm products but not proceeds from products; allowing elevator to use FSA to setoff preexisting debt and take priority over perfected liens would circumvent state laws on security instruments and is not permitted under FSA; elevator argued contract with debtor had right to set-off and prohibited assignment, so contract gives priority rights to elevator over creditor’s lien; court held creditor was never assignee on contract because creditor’s security interest arose in earlier agreement with debtors before accounts receivables from crops purchase contracts were formed; court declined to award pre-judgment interest to creditor because no debtor-creditor relationship was formed with elevator to permit interest award under state statute).


(petitioner, flight instructor, worked as independent contractor bought and maintained an airplane to maintain proficiency with maneuvers and controls; petitioner failed to show that buying and maintaining plane necessary to maintain proficiency; FAA requirement is that every two years a two-hour flight examination must be taken or training course must be completed; expenses disallowed for maintaining plane).


(plaintiff invested in unsecured interest-bearing notes that were sold by American Business Financial Services (ABFS); plaintiff initially received monthly interest checks and continued to invest until ABFS started to default on various obligations; plaintiff tried to recover funds, but failed and claimed a theft loss deduction for unrecovered amounts; IRS denied deduction on basis that theft by deception required plaintiff to prove that ABFS engaged in deceptive act with intent to deprive plaintiff of possession of property or services and such misrepresentation caused the plaintiff to invest; court upheld IRS determination because plaintiff failed to prove that ABFS had criminal intent to deprive plaintiff of funds without a plan of making plaintiff whole; payment of interest tended to establish that ABFS lacked criminal intent; no evidence of misrepresentation).


(debtor had 1/6th interest in farm business; in exchange for security in financing provided debtor (and other brothers) signed over his interest in farm to his brother providing financing; debtor filed Chapter 7 bankruptcy; court held operating agreement for farm prohibited transfer of membership units, so debtor’s interest in farm was property of bankruptcy estate and trustee sought liquidation of farm from remaining members, which was rejected; trustee sought declaration that operating agreement required dissolution of farm; members argued dissolution not required because members agreed to continue company in accordance with operating agreement; written agreement to continue also stated debtor was dissociated from company; court held agreement invalid because dissociation violates automatic stay and it was untimely; court, however, sua sponteevaluated whether dissolving LLC because member files bankruptcy would contravene federal law; the issue turned on whether an operating agreement is an executory contract and if so, whether 11 U.S.C. §365 governs trustee’s rights; because operating agreement in this situation does not contain any material obligations unperformed by debtor, it is not an executory contract and §365 does not apply; under terms of operating agreement, the farm must dissolve because the debtor filed bankruptcy; 11 U.S.C. §541, however, invalidates the condition requiring dissolution upon filing bankruptcy because this would modify debtor’s economic and non-economic rights so agreement provision is unenforceable; court held trustee could redeem debtor’s interest or appoint receiver to operate company and could seek judicial decree of dissolution under state law, so court’s decision does not leave trustee without remedy).


(petition to deny debtor’s discharge for transferring or converting assets owned by company into exempt property on eve of bankruptcy; debtor sold at auction personal and real property belonging to company; debtors used proceeds from auction to purchase personal exempt homestead, which would be exempt property; court held that debtors remarkable number of errors and omissions in bankruptcy schedule and statements reveal a “calculated scheme” designed to protect their claim of exemption in the homestead; court held purposeful failure to provide sufficient disclosures regarding the purchase of the property and source of money used were material omissions and burden under statutory provision allowing denial of discharge due to making false oath or account in bankruptcy proceeding was met; discharge of debtors denied).


(judgment as a matter of law granted to plaintiff on contract claim; defendant admitted contract with plaintiff for crop inputs and that no payment had been made; no evidence that warranty or representation regarding “target” yields to be met were made by plaintiff and defendant not entitled to withhold payment due to any misrepresentation; insufficient evidence presented that application of manganese by plaintiff did not result in manganese toxicity and cause reduced yields; evidence instead showed farm consistently underperformed, manganese toxicity in corn in state had never been documented, and only soil sample presented by defendant “had literally been baked” in defendant’s oven).


(plaintiff sought injunctive relief and damages against his neighbors, the defendants, due to nuisance caused by incessant barking from defendants’ sheltie and dangerous nature of other dogs; plaintiff sought injunction to prevent defendants from owning any dogs; trial court held barking did not disturb plaintiff’s sleep as evidence showed barking did not occur at night, plaintiff never sought medical care, and dog had been given away; evidence also failed to establish other dog was dangerous; trial court declined to issue injunction or award damages; plaintiff appealed; trial court decision affirmed, court found no evidence of irreparable harm or compensable damages).


(policy letter provides illustration of how the "10 and 10" requirement of the capital gain exclusion functions when taxpayer owns business real estate in one entity and operates the business in another entity; IDOR says that taxpayers can exclude gain on sale of the business real estate (or entire business) that is held for 10 years and is used in the business in which the taxpayer materially participates for 10 years; letter notes that IA follows I.R.C. Sec. 469 rules for determining material participation; letter notes that exclusion applies to taxpayer who is a non-resident and (in second scenario) owns real estate in different entity that in which material participation occurs; letter notes that I.R.C. Sec. 469 would deem net income from self-rental as non-passive).


(before death, the decedent had begun the process of creating a family limited partnership (FLP), but failed to finalize it and transfer community property bonds (worth $300 million) to the FLP before death; decedent died on May 15, 2000, and estate filed Form 706 and paid $147 million in federal estate tax in February of 2001; tax counsel later learned of TX caselaw supporting discounts for FLP’s created and funded post-death and completed formation and funding of FLP that would make the FLP be deemed to be in existence before decedent’s death; as such, estate would lack sufficient liquid assets to pay estate tax; thus, estate tax payment restructured as loan from FLP with associated interest; refund claim filed due to valuation discount claim as result of FLP and estate claimed deduction for interest on loan; trial court ruled for estate based on TX law and appellate court affirmed; under TX law, intent of asset owner to make an asset partnership property determined property ownership with respect to initial partnership capitalization – title to property passed to FLP contemporaneous with its formation; discount upheld as was deduction for loan interest as an administrative expense). 


(for post-Sept. 30, 2012 travel, per diem rates to be used in substantiating business expenses incurred for travel away from the taxpayer's home specified; for taxpayers in transportation industry paying (or deducting) a per diem only for meals and incidental expenses can treat $59 as the meals and incidental expense rate for all localities within continental U.S. $65 for all locations outside the continental U.S. (this is the same as the previous rates)). 


(consolidated civil actions challenging interim decision partial deregulation of genetically engineered sugar beets; during pendency of action sugar beets were fully deregulated and interim decision expired; case dismissed as moot; court held because decision challenged had expired, there was no longer a case or controversy, so plaintiffs must demonstrate an exception to mootness doctrine; both sets of plaintiffs’ claims were not evading review due to timing and full deregulation decision could be challenged; claim was also not one likely to recur, so no exception to mootness doctrine applied). 


(farmland on which above-ground irrigation system present was transferred; land was subject to two mortgages at time of transfer with one mortgage secured by the real estate and “hereditaments and appurtenances thereto”; irrigation equipment had been acquired for the land, the purchase of which was financed by a bank with collateral for loan listed as “all equipment” which included the irrigation system, a bulldozer and a tractor; bank filed financing statement that incorrectly identified the debtor as “Deepwater Seed Farm” rather than “Deepwater Seed Farms” and search with Secretary of State’s office under debtor’s correct name did not reveal bank’s lien on irrigation equipment; no fixture filing made in real estate records as to irrigation equipment because bank didn’t think irrigation equipment was a fixture; land later sold at foreclosure and buyer had no knowledge of lien on irrigation system; plaintiff, as owner of irrigation equipment brought replevin action; trial court ruled for buyer at foreclosure sale largely because plaintiff present at foreclosure sale, bid on property and made no mention of any claim of ownership to irrigation system; appellate court affirmed on basis that buyer was purchaser for value and irrigation system was not personal property). 


(fee dispute between attorneys; farm owners originally hired law firm to represent them in action against Tennessee Valley Authority for coal ash spill; owners fired attorney after communication issues and being pulled into class action suit for which they did not want to participate; second attorney effectuated settlement with TVA, which included sale of owners farm; second attorney paid 25% of settlement, which was $900,000; first attorney awarded quantum meruit for work done prior to being fired for cause by owners; judgment against second attorney rather than owners; on appeal, court upheld trial court finding that attorney fired for cause and quantum meruit calculation of benefit conferred). 


(thoroughbred horse racing and breeding activity not engaged in for profit under multi-factor test; accuracy-related penalty imposed).


(appeal of agency decision to reduce number of ewes and lambs permitted to graze on federal allotments; reduction made pursuant to implementation of federal law and adaptive management plan; plaintiff alleged agency failed to rigorously explore and objectively evaluate all reasonable alternatives; court disagreed and held agency considered alternative plaintiff proposed; plaintiff agued agency improperly calculated data in conflict with agency “Training Guide” in its decision-making; court held plaintiff failed to properly notify agency of this issue, so exhaustion requirement not met and issue not appealable; plaintiff argued agency failed to consider whether reduction in livestock grazing with achieve desired result; court held record reveals agency considered additional factors but determination grazing was an element causing issues was not unreasonable; agency decision affirmed).


(creditor claimed priority of treatment as “trust claim” under PACA; debtor objected that creditor did not comply with PACA requirements so it did not qualify; creditor was not PACA licensee at time of shipment of produce and no additional notice as non-licensee provided as required under federal law; court held substantial compliance (rather than strict compliance) was sufficient for notice requirements under PACA so creditor qualified for trust).


(plaintiffs were injured in collision with farm tractor and disc mower; neither tractor nor mower were insured; plaintiffs sought coverage under uninsured provision in their policy, which was denied; plaintiffs brought breach of contract claim against defendant; defendant granted summary judgment because farm tractor not “motor vehicle” as defined by insurance policy and plaintiffs appealed; appellate court affirmed because tractor not designed to operate primarily on highways and not required to be registered, tractor is not a motor vehicle under state No-Fault statute or under policy as a matter of law; reasonable expectations doctrine is also not applicable because definition of motor vehicle in policy is not ambiguous).


(three cotton pickers caught fire in area of machine where lint and debris could collect, but was difficult to clean without disassembly; machines were destroyed and plaintiff paid owner for losses; plaintiff brought claim as subrogee to recover for costs of machinery paid to owners; defendant filed motion to dismiss or summary judgment; defendant’s attempted disclaimer of implied warranties were not valid under state law, so they did not protect from claims made; under plaintiff’s claim of breach of implied warranty, court held defendant was a merchant and manufacturer under state law and questions of fact remained as to whether cotton pickers were merchantable at time of sale and whether notice of alleged breach was given to defendant with given opportunity to correct, so claim survived summary judgment; plaintiff’s claim of implied warranty of fitness for a particular purpose, however, was dismissed because cotton pickers were purchased to pick cotton, their ordinary use, so there was no proof of the claim).


(grape-growing plaintiff brought negligence, trespass, and nuisance claims against landlord claiming she knew or should have known her sod-growing tenants would use a chemical herbicide; plaintiff also brought same claims against tenant for improper herbicide drift causing destruction of grapevines; landlord filed summary judgment motion for all claims against her as an out-of-possession landlord; court found landlord made no promises to repair property or had any constructive knowledge of herbicide spray nor did she have any intent or knowledge regarding any entry onto plaintiff’s property, so no proof of claims existed and summary judgment granted; cross motions for summary judgment between plaintiff and tenant were denied due to questions of fact regarding timing of spray in April and causation of damages seven weeks later).


(creditor claimed priority of treatment as “trust claim” under PACA; debtor objected that creditor did not comply with PACA requirements so it did not qualify; creditor was not PACA licensee at time of shipment of produce and no additional notice as non-licensee provided as required under federal law; court held substantial compliance (rather than strict compliance) was sufficient for notice requirements under PACA so creditor qualified for trust).


(three daughters inherited property from their father in equal shares; one daughter brought partition action; referee found partition in kind of real estate was not possible due to ill-will between sisters and recommended public sale; one daughter objected but court ordered sale; issue of sale timely appealed; court determined order of sale was a final, appealable order in probate due to substantial rights affected by sale and decided appeal; on appeal, court held party seeking partition must overcome presumption that in-kind partition was preferable; facts showed property as a whole did not have more value than separate parcels and two sisters wanted partition in kind to keep land in family, including proposed partition which could have been used; court disagreed with proposed partition plan and distributed tracts and equalized values through additional assets of estate; court also held referee was properly appointed, but probate court not able to award attorney fees once action appealed, and court erred because sister as personal representative was not required to post bond to perfect appeal).


(plaintiffs claimed that defendants were at least partly the cause of "global warming" via the emission of greenhouse gases and had conspired to create a public nuisance by contributing to "global warming" and allegedly misleading the public about the consequences of "global warming"; trial court dismissed case on basis that plaintiffs lacked standing for failure to trace their injury directly to the defendants; on appeal, court affirmed; Clean Air Act (CAA) precludes public nuisance claims under public nuisance law in the realm of greenhouse gas regulation; court referenced U.S. Supreme Court opinion holding that federal common law addressing greenhouse gas emissions has been displaced by Congressional action; plaintiffs inadvertently admitted that "global warming" had been occurring for hundreds of years - before the advent of the industrial revolution and the internal combustion engine; court stated that plaintiffs could not "pick and choose amongst all the greenhouse gas emitters throughout history to hold liable for millions of dollars in damages").


(appeal of denial of environmental activist groups’ denial of motion to intervene in takings claim by downstream property owners whose land was flooded from release of water from dam pursuant to consent order and Congressional approval; intervening groups were involved in underlying environmental litigation that resulted in consent decree; district court held groups unable to meet four-part test for intervening, so no foundation to intervene; on appeal, denial of motion affirmed; court chose to address only that interveners unable to show their interests not protected by government’s involvement in litigation; concurrence filed stating in other cases, decade-long litigation between interveners and government might give rise to concern that government could not protect interests of interveners and wholesale rejection in future not warranted).


(plaintiff was named insured under crop insurance policy; USDA NAD Director concluded that plaintiff lacked bona fide insurable interest in insured crop either as owner-operator, landlord, tenant or sharecropper; in earlier action, court vacated NAD Director finding; plaintiff filed application for fees and costs under EAJA and defendant denied application on basis that plaintiff did not submit sufficient net worth exhibit to show that plaintiff had net worth of less than $7,000,000 and had fewer than 500 employees; while net worth statement deficient, court allowed plaintiff to submit further documentation as to net worth; defendant (Risk Management Agency) took position in Loss Adjustment Manual Handbook that plaintiff must produce crop, exercise managerial control over crop, make credit arrangements with respect to crop and own farm equipment or make arrangements to obtain equipment or hire custom work; defendant's position unreasonable and plaintiff entitled to fees and costs; plaintiff bore financial risk with respect to crop at issue; enhanced fees awarded (upon submission of further documentation as to net worth establishing eligibility for crop insurance) due to specialized knowledge necessary to practice with respect to federal farm programs). 


(case involves judicial review under APA of defendant's determination denying coverage under plaintiffs' crop insurance policies due to failure to follow good farming practices by planting non-irrigated corn crops in Baca County, CO (extreme southeast CO with heavy utilization of pivot irrigated crops) and (for other plaintiffs) failure to apply fertilizer before planting during 2008 growing season; in earlier action, court vacated defendant's denial of coverage to "fertilizer" plaintiffs and affirmed as to others; prevailing plaintiffs then sought attorney fees and costs under EAJA and defendant opposed the fee application; fee application denied due to lack of supporting documentation with respect to any individual that their net worth is less than $2,000,000, but court convinced that plaintiffs could support net worth claims by supporting documentation; defendant's position that fertilizer must be applied at time of planting and that soil testing must occur before planting, not substantially justified; defendant failed to give weight to opinion of expert who stated that plaintiffs' farming practice of applying fertilizer as side dressing to growing crop appropriate for dry conditions; fee request approved (upon plaintiffs establishing eligibility via submission of revised net worth exhibit) including enhanced rate for specialization in federal crop insurance claims and the understanding of federal farm programs). 


(petitioners had no gambling winnings and, therefore, could not deduct gambling losses of $40,488; "Turbo Tax Tim Geithner" defense not allowed - taxpayers had prepared return utilizing H&R Block's "Taxcut" software which allowed deduction without gambling winnings; taxpayers did not consult Code and simply relied on the fact that "Taxcut" had been approved by IRS; no reasonable cause shown for the underpayment).


(debtor was grain farmer who filed Ch. 7 bankruptcy; at creditor’s meeting debtor denied ownership in company at issue in present case; debtor later pled guilty to money laundering and bankruptcy fraud for selling grain out of trust and selling grain from entities established to sell free of liens; current decision regarding trustee’s adversary proceeding against business to avoid 70 payments received from debtor’s company as unauthorized postpetition transfers; business argued it was subsequent transferee with good faith and without knowledge of voidability of transfer; trustee advanced alter ego theory that separate companies operated by debtor to defraud creditors allows avoidance of payments made to good faith transferee; court held alter ego/piercing corporate veil equitable remedy could not be used to void transfers made to good faith transferee).


(dog breeders sought to prevent release by USDA of their sales and purchases in Freedom of Information Act request filed by Humane Society; USDA held no exemptions to disclosure of information existed; court found USDA’s decision to release information was not arbitrary or capricious; disclosure of sales and purchases did not fall under FOIA  “trade secrets” exemption because information is commercial or financial and not privileged; disclosure exemption related to personnel or medical files for which disclosure would be an unwarranted invasion of privacy, was not applicable because private interests were slight and public interests in having information outweighed private interest; summary judgment granted to defendants).


(challenge of city board of adjustment decision that challenger’s neighbors have existing, nonconforming animal rights use to keep cattle on their property due to use since 1970; appellate court found challenger failed to meet his burden of proof and marshal evidence; sufficient evidence existed to support board’s decision; challenger also failed to preserve issues at board hearing, so not addressed at appellate level; court also upheld district court order allowing neighbors to intervene in challenger’s action against city; board decision affirmed).


(case involves right to use and maintenance of road; express easement; road could be used for vehicles and farm equipment to pass; road could be paved and/or graveled by holder of dominant estate; express agreement said that road was to be 16 feet wide; owners of servient estate to allow free and unrestricted use of road by owners of dominant estate). 


(agricultural land owners were operating existing farm stand as a restaurant in violation of ordinance; property owners argued farm stand was pre-existing nonconforming use; zoning required that homemade or home grown products be sold at farm stand and not more than 40 percent of other items could be sold; court held facts undisputed that present use of farm stand as restaurant was not pre-existing nonconforming use and violated current township ordinance).


(husband and wife were separated at time of husband’s untimely death as result of work-place accident; decedent's mother, as administrator of husband’s estate, claimed wife was not entitled to receive any interest in husband’s estate based on state statute that spouse who voluntarily leaves the other and "lives in adultery" forfeits any interest in deceased spouse’s estate; mother presented evidence that wife had drunken sex with another man the night before husband died; court held that legislature  intended phrase “living in adultery” to mean more than a single act of intercourse outside the marriage and required periodic and recurring conduct; also fornication committed by surviving spouse after decedent's death irrelevant under adultery statute because once spouse died, surviving spouse could not commit adultery against the deceased spouse). 


(appeal from circuit court review of administrative opinion denying just compensation for landowners due to environmental law prohibiting additional home-building; just compensation allowed waiver of post-acquisition land use regulations resulting in approval of up to three permits for homesites on property; just compensation premised on petitioners’ authorization for additional dwellings at the time of acquisition under existing laws; petitioners, however, were unable to establish they planted perennials capable of generating $10,000 in annual gross income which is a statutory prerequisite for entitlement to dwelling on less than 20 acres; court held petitioners were required to establish prerequisites were met prior to change in law; just compensation did not allow entitlement to attempt to meet historical standards;  circuit court order reversed and agency decision reinstated).


(appeal from circuit court review of administrative opinion denying just compensation for landowners due to environmental law prohibiting additional home-building; just compensation allowed waiver of post-acquisition land use regulations resulting in approval of up to three permits for homesites on property; just compensation premised on petitioners’ authorization for additional dwellings at the time of acquisition under existing laws; petitioners, however, were unable to establish they planted perennials capable of generating $10,000 in annual gross income which is a statutory prerequisite for entitlement to dwelling on less than 20 acres; court held petitioners were required to establish prerequisites were met prior to change in law; just compensation did not allow entitlement to attempt to meet historical standards;  circuit court order reversed and agency decision reinstated).


(motion to transfer venue due to improper venue and inconvenient forum; litigation involves breach of hay delivery agreement; defendants failed to raise improper venue in a pre-answer motion or in the answer, so issue waived; court held Nebraska was not an inconvenient forum because plaintiff’s witnesses from state, witnesses traveling from states closer to Nebraska than proposed venue, and contract required delivery through the state; motion denied).


(appeal of grant of summary judgment to horse owner under equine statute; appellate court held issue of fact generated by written admission of horse owner of negligence in matching plaintiff with horse based on plaintiff’s experience and skill; matching rider with a horse for a solo ride could be an act or omission that constituted negligent disregard for plaintiff’s safety and factual issues remained; summary judgment reversed).


(petitioner, airline pilot with side business as real estate broker, reported large loss from side business on Schedule C; as for trip to Hawaii, petitioner claimed business expense deduction for cost of airline ticket for unidentified third party; alleged purpose of trip was to scout potential properties for unnamed client; claimed expenses to Yosemite National Park also undocumented, along with unsubstantiated expenses for trips to other places; all expenses denied and court upheld denial for lack of substantiation).


(debtors filed Chapter 12 in 2010, four years after entering into oil and gas lease with production company; debtors moved to "reject and void" lease under 11 U.S.C. Sec. 365(d)(4) on basis that lease was undervalued; production company objected to effort to reject lease; whether oil and gas lease is a "lease" is a matter of state law, but whether an instrument is an executory contract is a matter of federal law; complicating factor was that, post-petition, pooling agreement recorded; court concluded that debtors were party to unexpired lease; debtor failed to show justification for rejection and provided no authority for avoidance).


(township filed petition seeking maintenance and repair of drain; practicability hearing held, order of practicability issued, and public necessity hearing scheduled; hearing was rescheduled due to large number of attendees and fire marshal regulations; prior to rescheduled hearing drain board increases size of proposed district and cost of project; plaintiffs brought suit alleging second practicability hearing must be held to increase size of project and this failure divested board of jurisdiction over project; trial court held township’s petition for maintenance was sufficient to allow board to proceed on intercounty drain and second practicability hearing not necessary because size and scope only determined after practicability of project is determined; appellate court held plaintiff’s arguments without merit and trial court decision affirmed).


(case involved deductibility of business deductions for personal “businesses” run by airline pilot; plaintiff was sole proprietor of dog bed manufacturing company from 2000-2002; from 2002-2004, plaintiff purchased several undeveloped parcels of land; plaintiff traveled to these properties throughout time period but had little development or rental activity on any property; court allowed deductions in 2002 for business expenses for dog bed manufacturing except vehicle or depreciation expenses due to lack of substantiation and allocation between personal and business use; expenses were disallowed for “real property business” in 2003 and 2004 under I.R.C. §162 because activities in acquiring unimproved parcels did not constitute trade or business; under I.R.C. §212, however, court allowed deductions for advertising, interest, and utilities; plaintiff not entitled to depreciation on any properties or other deductions due to failure to establish expense related to real estate activity, lack of substantiation on amount, expense capital in nature, or expenses actually related to acquisition of personal vehicle).


(IRS provides guidance concerning how to recharacterize taxable wages as non-taxable reimbursements; four scenarios provided including one scenario that satisfies the requirements for an accountable plan).


(plaintiff owns a hunting ranch from which plaintiff's herd of approximately 135 trophy bull elk escaped by breaking through a fence; state (ID) law (Idaho Cod Ann. Sec. 25-3705A(3)) provided for a seven-day time period during which elk owners could recapture their animals before such animals could be killed without liability; plaintiff recaptured 61 elk ,and after 34 days state issued "shoot-to-kill" order authorizing game wardens to pursue herd; hunters killed 43 elk and 31 were never caught; kill order issued on basis that plaintiff's elk could potentially breed with wild elk and spread disease; plaintiff, a veterinarian, denied the possibility of disease; court rejected plaintiff's argument that state law only specified that an elk rancher who did not recapture escaped elk in the seven-day period has no legal recourse is a licensed hunter happens to kill such elk during elk hunting season; court held that statute meant that state could legally kill any domestic elk after expiration of seven-day period; plaintiff had also brought civil rights claim; court held that civil rights claim barred by qualified immunity of state actors; court also upheld attorney fees award to defendants because plaintiffs pursued case without reasonable basis in law or fact; defendants awarded appellate attorney fees for same reasons). 


(defendant, environmental activist, fraudulently bid on parcels of land near Utah national parks at oil and gas auction in an attempt to stop auction; actions not permissible civil disobedience; act of completing bidder registration for and acquiring bidder’s paddle consistent with intent to bid at auction; trial court did not err in declining defendant’s request to present evidence that supposedly would establish the illegality of the auction conducted by the Bureau of Land Management; defendant’s two-year sentence upheld [note: Obama Administration later overturned the auction by rescinding the same of numerous parcels and denying them to winning bidders, but not possible to bring criminal action against Administration]).


(plaintiff struck by errant golf ball while watching son participate in golf tournament; plaintiff sued player who hit ball, tee-time volunteer manager for tournament, company  operating tournament and facility and owners of company; district court granted summary judgment as to all defendants except player who hit ball; order premised on state recreation safety statute, which provides immunity against inherent risks; on appeal, court agreed generally getting hit by golf ball is inherent risk, but factual questions remained regarding whether defendants increased risk plaintiff would be hit; court reversed and remanded).


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