Annotations 05/2012

(quiet title action involving multiple deeds; plaintiff deeded property to his daughter, but retained a life estate; daughter deeded property back to plaintiff, but deed was not recorded until September 2004; daughter subsequently deeded property to defendant in July 2004, which was recorded in July 2004; in August 2004, defendant executed promissory note to daughter for free and clear title; other subsequent deeds were executed, but were not part of the appeal; plaintiff filed suit against defendant to quiet title to property; defendant argued he was a subsequent purchaser in good faith who filed his deed first, so he was owner of property; district court found defendant failed to provide consideration for deed, so he was not good faith purchaser and plaintiff owned property; defendant appealed; appellate court affirmed district court’s factual finding that no consideration was given for deed recorded in July 2004 because promissory note was granted after deed and was for “free and clear title” rather than recorded deed).


(plaintiff brought personal injury action against defendant after defendant’s horse kicked plaintiff; defendant recently adopted horse from local shelter and horse was gelded prior to adoption; plaintiff was hired by defendant to feed horse and clean out stall where horse was boarded; plaintiff was taking horse out to paddock when injury occurred; defendant filed motion for summary judgment claiming equine act provided immunity; district court granted motion, and plaintiff appealed raising several issues; appellate court affirmed summary judgment after responding to all of plaintiff’s issues; specifically, court held immunity statute applies to all “participants” and limited liability not limited to tourist or recreation; plaintiff was independent contractor subject to equine act and not employee because she advertised her own business and controlled when and how to do her job; plaintiff held herself out as qualified to assist in caring for animals, so defendant not required to do searching inquiry of her abilities under Act; horse had been well-behaved on all prior instances, so failure to disclose that horse was rescued or had recently been gelded did not create fact question; and plaintiff failed to argue that required posting under Act had been complied with, so issue was waived).


(extension of time to make alternate valuation election granted).


(scrivenor error in naming of Trust 2, instead of Trust 1, as the grantee of deed did not result in a completed gift by the grantor; grantor could correct mistake via civil action seeking deed reformation based on mutual mistake; matter involved attempted funding of trusts for spouses that were to qualify as QPRTs; husband intended to transfer his interest in residence to his trust and wife intended to do the same, but wrong trust named; original deed determined not to reflect parties true intent; upon reformation, there would be no completed gift to wrong trust).


(IRS relaxes provision contained in Patient Protection and Affordable Care Act  that sets $2,500 annual limit on flexible spending account maximum contributions employees can make to their FSAs set to take effect with respect to contributions made after 2012; IRS stated that participants in non-calendar-year plans may make unlimited contributions to their FSAs during first year that law's mandatory $2,500 contribution ceiling is in effect - in other words, $2,500 limit will not apply for plan years beginning before 2013; IRS accepting comments on the rule set forth in the proposed regulations with respect to health FSAs until Aug. 17, 2012). 


(plaintiff brought negligence and premises liability claim against property owner when cow charged him while he was riding his motorcycle on a private road; plaintiff’s aunt and other property owners held easement over private road; cows grazed on pasture surrounding road and no fence existed; no previous incidents with cows had occurred and assaulting cow had never demonstrated aggressive tendencies; trial court granted motion for nonsuit [directed verdict] finding no duty existed to prevent cows from accessing a private driveway others have the right to use; plaintiff appealed; on appeal, the  court held that defendant owned underlying property, but others owed easement so duty must be narrower and tied to reason easement was granted; no evidence presented regarding nature and tendency of cow or that reasonable rancher would not allow cows to graze in pasture bisected by private road; and court held defendant had no duty to fence in cows from private road; judgment affirmed).


(debtor's prohibited from confirming Chapter 11 reorganization plan containing cramdown provision that proposed to sell the debtor's property at auction clear of bank's lien where sale proceeds would be used to repay bank but where bank not permitted bank to credit-bid (using the debt owed the bank to offset purchase price) at auction; 11 U.S.C. Sec. 1129(b)(2)(A) does not allow debtors to sell encumbered assets free and clear of lien without allowing credit-bidding). 


(petitioner owned several properties and donated the properties to a charitable remainder trust; petitioner prepared own tax return and failed to include qualified appraisal from independent appraiser (petitioner was qualified appraiser) for properties; IRS disallowed charitable deduction; while IRS conceded that value of properties was higher than what petitioner claimed, entire deduction disallowed for failure to follow applicable regulations requiring appraisal; court upheld IRS complete disallowance of charitable deduction). 


(plaintiffs appeal trial court decision involving no-discharge operational permits issued to nine farmers engaged in contract hog production; permits issued for manure storage pits; adoption of Waterkeeper decision for regulatory definition of CAFO improper because KY water pollution statue broader than CWA on issue of whether direct discharge into water required to trigger permit application; trial court erred in determining that permits necessary - if and when runoff occurs, judicial recourse will be available; farmers are parties with responsibility for day-to-day operations and trial court finding reversed on this issue; each permit need not include an individualized evaluation of potential for emission of air pollutants - trial court reversed on this issue; setback issue affirmed).


(employee injured because electrical box was still energized when he performed directed work; employee sued independent contractor that installed electrical box; contractor had finished work assigned a week prior to accident and locked up box with special equipment solely in possession of employer; district court granting summary judgment to independent contractor holding contractor had no duty to employee because contractor no longer had control of work site; court of appeals reversed finding the contractor still had control at the time of the incident; upon further review Supreme Court reversed appellate court and affirmed district court's legal conclusion that no duty to employee existed without control of worksite, which contractor had terminated when work was completed; concurrence in part agreeing no duty under Restatement (2d) existed but dissenting in part arguing that duty of independent contractor stems from owing ordinary duty of reasonable care for risks created by contractor's work rather than control over work site as stated by majority opinion).


(workers’ compensation case involving employee injured in car accident on cross-country return trip to employer’s ranch; employee planned to travel to yearlings sale out of state; employer requested employee ride in employer-provided transportation and accompany employer’s yearlings to sale instead; employee was to return to duty at the employer’s ranch at some time after the sale; employee rode in van, assisted with selling employer’s yearlings, then remained at sale working for other entities for a few days; employer left employee to find his own transportation back; administrative law judge found return trip was work-related because employee instructed to travel to out of state sale in employer transportation and return trip was part of employment; employer appealed; appellate court agreed the trip was work-related under the dual purpose doctrine, the accident occurred when employee was traveling back to employer, which was “necessary and inevitable” act of completing journey taken for employer).


(debtor was beneficiary of 50 percent of tax-deferred annuity owned by decedent; upon decedent's death, debtor inherited account funds and rolled them over into IRA in name of decedent for debtor's benefit; one day before decedent's death, debtor filed Chapter 7 and claimed the IRA account as exempt; funds held to be exempt; 11 U.S.C. Sec. 522(d)(12) does not require retirement funds originally to have been set apart by the debtor in contemplation of debtor's retirement; inherited IRAs are "retirement funds" as phrase used in 11 U.S.C. Sec. 522(d)(12); funds in account are tax-exempt under I.R.C. (here I.R.C. Sec. 408) as required by 11 U.S.C. Sec. 522(d)(12)). 


(petitioner created C corporation to provide management services to S corporations that petitioner owned; S corporations sold and C corporation purchased airplane and Chevy Tahoe and petitioner claimed expense deductions for plane and vehicle along with supplies and meals; deductions disallowed because petitioner failed to establish usage in taxpayer's business; petitioner derived personal benefit from plane and vehicle and received constructive dividend via rent payments made by corporation).


(patent validity case involving varieties of grapevines patented under PVPA; patents owned by USDA, but paid for by defendant which is funded by taxes levied on growers of table grapes; to buy patented varieties from nurseries, growers had to sign “Domestic Grower’s License Agreement” which barred growers from propagating the plants and allowed defendant to void agreement and order destruction of plants if agreement violated; plaintiff, grower, challenged validity and enforceability of patents; complaint allowed to be amended to add claims for rescission/restitution and unjust enrichment). 


(adjacent property owners disputed property lines after survey conducted; nuisance and trespass action against neighbors brought by plaintiffs; counter-claim to quiet title to property and trespass brought by defendant property owners; district court held metal pins established boundaries and ruled in favor of defendant property owners based on acquiescence in boundaries for more than 10 years; district court also dismissed plaintiffs nuisance and trespass claims; plaintiffs appealed; appellate court affirmed district court’s order quieting title as substantial evidence established pins were treated as boundary for 10 years; appellate court also upheld district court’s dismissal of plaintiffs’ claims because no specific factual findings were provided by district court on claim and plaintiffs failed to file a motion to enlarge findings to address dismissal now appealed).


(son of decedent established that tractor gifted to him by decedent before death; district court entered permanent injunction enjoining estate from selling tractor because it was gifted to son; estate appealed; appellate court agreed son established proof tractor had been gifted to him prior to decedent’s death and upheld permanent injunction)


(case involves action by government to collect unpaid estate tax from heirs of decedent; estate made I.R.C. §6166 election to pay estate tax in installments, but defaulted after having paid only $5 million of $6.871 million estate tax liability; IRS sought to collect unpaid amount from personal representative of estate and beneficiaries of decedent’s trust who were residual beneficiaries after all expenses and taxes of trust had been paid; major asset of trust was corporate stock; decedent died in 1991, trust assets distributed in 1992, and corporation filed bankruptcy in 2002 with beneficiaries receiving nothing on shares except minor amounts in return for covenant not to compete from the buyer of the corporate assets from the bankruptcy estate; beneficiaries, as recipients of trust distributions not liable as beneficiaries or transferees, but recipients of life insurance liable along with others who were liable as personal representatives; I.R.C. §6234(a)(2) lists categories of persons personally liable for estate tax including “transferee,” “trustee” and “beneficiary”; heirs did not become “distributee” when trust corpus distributed to them because property not received immediately upon date of death of decedent - trust property passes immediately to trustee; term “beneficiary” only refers to recipient of life insurance policy and not to be applied broadly to apply to any recipient of property from estate or trust; IRS not time-barred from collecting against distributes as long as time-period open for collecting against estate – statute of limitations had been extended by I.R.C. §6166 election; under 31 U.S.C. §6166, personal representative that pays any part of estate debt (i.e., distributing assets) before paying governmental claim personally liable to extent of payment for unpaid governmental unpaid claims; personal representative had distributed assets to beneficiaries before estate tax fully paid and become personally liable for any unpaid tax; contribution agreement between personal representative and beneficiaries also made personal representative personally liable if beneficiaries defaulted on obligation to pay unpaid estate tax).


(consolidated actions in which bank brought suit to collect delinquent notes from cattle owner debtors; notes were to be paid from cattle feeding operation directly to bank when cattle sold; bank brought summary judgment motions; district court granted summary judgment; debtors appealed; appellate court found disputed facts regarding bank’s process and application of funds to correct debtor accounts precluded summary judgment; district court order reversed and remanded).


(case involves Chapter 12 trustee filing adversary complaint seeking temporary restraining order against creditor to prevent creditor from foreclosing on certain property of debtor; trustee barred from bringing action due to lack of standing to bring avoidance action under Chapter 5 of the Bankruptcy Code). 


(defendant's posthumously conceived twins, born 18 months after husband's death, not "children" under Social Security Act as the biological offspring of deceased wage earner; under state (FL) law, marriage ends on death of spouse, so conception after spouse's death means that twins do not qualify as "marital children"; Social Security Administration's interpretation of Social Security Act that qualification for benefits turns on whether children could inherit from their father under state intestacy law was proper reading of SSA's text and is entitled to deference).


(defendants, married couple, purchased farmland from plaintiff that was subject to conservation easement in favor of plaintiff specifying that land would remain undisturbed in its natural condition and barred any uses that significantly impaired or interfered with conservation values; farming permitted on part of premises along with residential use; grazing allowed on other part of farm; plaintiff’s representative made inspection and noted violations of easement restrictions; all violations remedied before trial except plaintiffs’ filling of sinkhole next to home with 6,269 cubic yards of fill material so as to make farming easier on farming portion of land and protect residence; trial court granted summary judgment for plaintiff and awarded fees and expenses on basis that plain language of easement violated; dissent pointed out that court ignored other language in easement that would allow conduct at issue).


(denial of certiorari in Chapter 12 bankruptcy case on issue of whether taxes arising post-petition are entitled to non-priority status based on 11 U.S.C. §1222(a)(2)(A); issue decided in favor of IRS in Hall v. United States). 


(petitioners purchased residence via family LLC owned by themselves and their children and claimed FTHBTC; IRS denied credit and court agreed on basis that LLC not an individual; court unwillingly to pierce corporate veil in absence of fraud; multi-member LLC not disregarded entity under tax law, but single-member LLC is by default). 


(petitioners held various rental properties in Wyoming S corporation and properly filed Form 1120 for S corporation for many years prior to tax year at issue; petitioners resided in rental properties; petitioners purchased home in Nevada with $7,500 of their own money and $319,500 from S corporation; title to home taken in name of S corporation, but petitioners claimed first-time homebuyer tax credit (FTHBTC) on their Form 1040; IRS denied credit (after petitioners had been told by IRS that they could claim the credit even though S corporation owned home) on basis that S corporation not an individual and I.R.C. Sec. 36 only applies to individuals; court upholds IRS position on basis that corporations taxed under entirely different section of Code than individuals).


(petitioner defaulted on credit card; debt charged off on 9/12/96 and collection agency subsequently acquired account which was later acquired by another collection agency on 12/28/07; automated attempts to collected continued until 2008 even though statute of limitations for collection had expired on 2/15/01; collection agency issued Form 1099-C for 2008 tax year for $8,570.71, but petitioner's tax return did not report CODI; court determined that debt discharged in 1999, the year it became clear that debt would not be repaid - 36-month nonpayment period; issuance of Form 1099-C not determinative of discharged debt). 


(63-year old debtor satisfied 11 U.S.C. Sec. 523(a)(8) which provides for discharge of student loan if not discharging the loan would result in an undue hardship to the debtor; student loan debt of $340,000 discharged; debtor suffered from Asperger Syndrome which rendered her unable to gain employment; debtor obtained GED in late 1980s at age 39, received master's degree and Ph.D. from unaccredited online school in 2007, and attended but dropped out of law school).


(petitioner and father-in-law purchased principal residence for petitioner and spouse; spouse lived in home with petitioner, but was not included on title and did not sign note or mortgage on residence - mortgage was $1.35 million; petitioner files as MFS and deducted the interest on the full $1.1 million allowed by I.R.C. Sec. 168(h) (entire debt, including interest, paid off in 2007) ; court holds that petitioner's deduction limited to interest paid on $500,000 of home acquisition indebtedness and $50,000 of home equity indebtedness; 20 percent accuracy-related penalty imposed).


(petitioners' charitable contribution deduction denied due to failure to strictly comply with substantiation requirements of I.R.C. Sec. 170(f)(8)(A); petitioners contributed $22,517 to their church and statement provided by church acknowledged donated amount, but did not state whether petitioners had received any goods or services in return; upon notice by IRS of problem with church's acknowledgement, petitioners received corrected acknowledgement from church stating that petitioners had not received any goods or services; Tax Court held that first acknowledgement failed due to lack of required statement, and that second acknowledgement failed because it was not received by petitioners before they filed their tax return for year at issue and was, therefore, not contemporaneous as required by Treas. Reg. Sec. 1.170A-13(f)(2)).


(accounting firm founded by three accountants that owned over 80 percent of firm and attempted to organize as C corporation, but organization never accomplished; for tax years 2001-2003, firm paid over $850,000 in "consulting fees" to three entities that founding shareholders owned, and "consulting entities" paid founders for consulting services rendered to firm's clients (in addition to annual salaries totaling $323,076); fees classified as "salary expenses" which reduced taxable income; firm had revenues of $5-7 million annually but only $11,279 taxable income in 2001 and loss of $53,271 in 2002 and no taxable income in 2003; amounts reclassified as dividends that were not deductible salary expenses; substantial understatement of corporate tax liability resulted ($300,000 annually); accuracy-related penalty imposed; court commented that it was "puzzling" why firm not reorganized as pass-through, and stated, "That an accounting firm should screw up its taxes is the most remarkable feature of the case.").


(court issued order denying reconsideration of Kansas Court of Tax Appeals decision that granted property tax exemption for Kansas portion of Keystone pipeline because pipeline qualifies for exemption). 


(property tax assessment case in which petitioners sought 13-acre property reclassification as agricultural land; property reclassified because it did not have 10 or more acres used for raising or cultivating an agricultural product; petitioners began building horse boarding stable themselves and planted forage so sought reclassification; reclassification denied because statute required agricultural products to be produced the year before assessment and petitioners failed to establish any agricultural use in prior year because no boarding and forage planted after year for which reclassification was sought).


(directed verdict granted when plaintiffs failed to affirmatively establish boundary line in adverse possession claim with clear and convincing evidence; witnesses at trial unable to agree from photograph to photograph where boundary actually existed during period claimed or whether irrigation pivot’s location established boundary; plaintiffs appealed; appellate court agreed boundary “moved” and plaintiffs failed to establish essential element of adverse possession claim; trial court’s opinion affirmed).


(pro se appeal from former trustee who was removed upon petition by guardian ad litem of minor beneficiary; former trustee was removed for failing to manage trust assets in professional manner; trust properties were uninsured, property taxes were unpaid, unsavory tenants resided in motor homes on trust property without regard to legality of such rentals, and trustee filed pro se answer to wrongful death suit against trust based on accident occurring on uninsured trust property; appellate court affirmed removal).


(plaintiff was President and CEO of Louisiana Land & Water Co. and LWC Management and was charged with, and convicted, of knowingly violating Clean Water Act (CWA); plaintiff's companies responsible for operation of 28 wastewater treatment facilities which treated and discharged wastewater (effluent); plaintiff was required to receive NPDES permit for each facility that imposed effluent limitations on discharge of certain pollutants from facilities; plaintiff required to collect samples to ensure discharges within permit limits and maintain records; requirements not complied with; plaintiff charged with 17 criminal violations of CWA and convicted on 8 counts; court affirmed on basis that sufficient circumstantial evidence present to support conviction - totality of evidence supported conclusion of guilt beyond a reasonable doubt; intent necessary to support conviction (mens rea requirement) can be demonstrated by direct or circumstantial evidence allowing an inference of unlawful intent; prior acts admissible to establish intent).


(non-exempt cooperative’s net earnings derived from services provided to shareholders by single-member LLC that cooperative wholly owned treated as patronage-sourced; income deemed as earned directly from cooperative business with patrons; income qualifies as patronage-sourced and treated as deductible patronage dividends upon distribution).


(in affirming Ninth Circuit, Court holds that plain language of 11 U.S.C. Sec. 1222(a)(2)(A), in coordination with I.R.C. §§ 1398 and 1399, results in taxes arising post-petition in Chapter 12 being the debtor's responsibility; no separate taxable entity from the debtor created in Chapter 12 and taxes do not constitute administrative claims in accordance with 11 U.S.C. § 503(b)).  


(Chapter 7 case in which debtors claimed exemption for $139,000 contained in retirement plan; trustee objected and court held that funds not exempt from inclusion in bankruptcy estate; pre-petition, funds had been transferred to different bank account to be used to invest in real estate in Panama with $139,000 remaining in account at time petition filed; Illinois opted out of federal exemption scheme, and state law does not exempt assets that were once held in qualified IRA but were no longer so held at time of petition; state law exempts interests held in qualified IRA and does not exempt right to receive such funds). 


(petitioner loaned $200,000 in 1988 to distant relative and received promissory note in return; monthly payments were not initially made until 1990 and only partial interest payments were made from 1990-2000; last payment of any kind made in 2003; borrower died in 2004 and efforts to collect from decedent’s sons failed; petitioner deducted loan as non-business bad debt on 2006 return; court denied deduction because debt became worthless before 2006; no formal claim made in decedent’s estate or that decedent’s sons legally obligated to pay loan; court determined that petitioner’s decision not to enforce debt was for personal reasons). 


(three oil and gas property exchanges failed to qualify for I.R.C. Sec. 1031 treatment; exchanges facilities through third-party intermediary, but taxpayer didn't sufficiently prove receipt of like-kind property - inconsistent documents, lack of proof of payments or that mortgages assumed, assignments not recorded and no income or expense on properties for years at issue). 


(search warrant issued based on observations of defendant’s "magic mushroom" growing operations made by officers in wooded area outside defendant’s rural home in clearing but still on part of defendant’s property; defendant brought motion to suppress evidence of psychedelic mushroom cultivation operation obtained by warrant; defendant argued his entire property encompassed privileged curtilage and was his “yard”; court disagreed and held, that while rural homes can have a more expansive curtilage than urban homes, open clearing separating defendant’s home and outbuildings from wooded area functioned as curtilage; area was suitable for activities intimately associated with home and use of area associated with home use versus areas of farm activities; motion to suppress evidence denied).


(petitioner, at age 56, moved funds from employer’s retirement plan to IRA and then withdrew about $240,000 from IRA before reaching age 59 and ½; even though petitioner not subject to 10 percent penalty for withdrawal of funds before rolling them into IRA the funds were withdrawn from an IRA before age 59 and ½ and are subject to 10 percent penalty in accordance with I.R.C. §72(t)(3)A); accuracy-related penalty imposed).


(individual taxpayer planted vineyard in 2005 and placed vines in service during 2009; taxpayer capitalized cost of land preparation (but not any non-depreciable land costs), labor, rootstock and planting over three years); when plants became viable in 2009, taxpayer claimed I.R.C. Sec. §179 deduction for costs incurred in planting vineyard; vineyard classified as 10-year MACRS property under I.R.C. §168(e)(3)(D)(ii) and is, therefore, property to which I.R.C. §168 applies; vineyard is “other tangible personal property” under I.R.C. §1245(a)(3)(B)(i) because it is an inherently permanent structure and satisfies the definition of “other tangible property” under Treas. 48-(1)(d) and would be tangible personal property if it is not an inherently permanent structure because it meets definition of tangible personal property under Treas. Reg. §1.48-1(c); thus, vineyard is I.R.C. §1245 property as required by I.R.C. §179(d)(1); Rev. Rul. 67-51 no longer applicable for purposes of I.R.C. §179; vineyard acquired by purchase for use in taxpayer’s trade or business; vineyard meets all requirements to be depreciable under I.R.C. §179).


(class-action case; steel workers not entitled to overtime pay for time spent donning and doffing work clothes and walking from locker rooms to work site; provisions in collective bargaining agreement expressly precluded payment for such activities and Fair Labor Standards Act did not override CBA; class claimed that changing clothes involved putting on "safety equipment" rather than "clothes" and, thus, FLSA exclusion for donning and doffing time from overtime pay not applicable; court disagreed; activity not within Portal-to-Portal Act exception; court directed trial court to dismiss case).


(appeal from trial court opinion regarding ownership of grapes grown on leased premises; entire case hinged on whether tenant abandoned lease and gave landlord legal right to retake premises and sell crop; trial court determined lease was not abandoned so landlord’s actions in selling grapes gave rise to conversion because tenant and bank had sufficient possessory interest in crop and awarded damages reduced by landlord’s costs in harvesting crop; court dismissed landlord’s counter-claims against tenant; landlord appealed; appellate court found substantial evidence existed and upheld trial court’s factual determination that tenant did not abandon lease; dismissal of landlord’s claims also upheld; claim for abuse of process failed because no allegations of court-issued process; intentional interference with contract claim also failed because landlord had no legal right to sell crop). 


(bill would have applied payroll tax to taxpayers with incomes over $250,000 by requiring such persons to include for payroll tax purposes income received from an  S corporation or limited partnership interest in a professional services business where 75 percent or more of the gross revenue is derived from the services of three or fewer shareholders or where the S corporation is a partner in a professional services business; bill failed on cloture vote by garnering only 52 votes; no Republicans voted for the bill and only one Democrat voted against it (Reid (D-NV)).


(debtor was Kansas resident at time petition filed, but had not resided in Kansas for 730 days before petition date; debtor lived in Nebraska during the the entire 180 day period preceding the 730-day period; Nebraska state bankruptcy exemptions are only available to Nebraska residents and bar Nebraska residents from claiming federal exemptions, so debtor claimed more generous federal exemptions in accordance with 11 U.S.C. Sec. 522(d); trustee objected;  court overruled trustee's objection to debtor claiming federal exemptions because Nebraska's territorial limitations not preempted by 11 U.S.C. Sec. 522; when debtor can establish residency for greater part of 180-day period, that state's laws apply to debtor's exemption rights and if those rights are denied by operation of law, federal exemptions may be claimed; 11 U.S.C. Sec. 522(b) does not pre-empt territorial limitation). 


(U.S. economy added only 115,000 jobs in April; unemployment rate declined to 8.1 percent as a result of the labor force participation rate falling from 63.8 percent to 63.6 percent (a 30-year low) which translates into 342,000 persons leaving the labor force; unemployment rate is 1.25 percent higher than what Obama Administration promised it would peak at if 2009 “stimulus” bill passed; rate is 39.7 percent higher than what Obama Administration projected unemployment would be in April of 2012 if “stimulus” bill passed; rate is 26.6 percent higher than what Obama Administration projected unemployment would be if “stimulus” bill not passed; number of jobs created must be 125,000 each month and labor market must add 285,000 jobs monthly for the next 4 years to achieve pre-recession unemployment rate by 2016; average duration of unemployment was 39.1 weeks). 


(property owner brought declaratory judgment action to determine boundary and trespass claim for cutting and removing timber from disputed area; neighbor filed counterclaim against seller for breach of warranty deed; court held that based on 1979 deed and established legal principles interpreting deed, plaintiff property owner owned disputed section of land and awarded damages for timber; trial court did not make any ruling regarding claim for breach of warranty deed against seller; neighbor appealed all issues; trial court’s opinion regarding ownership of disputed portion and award for cutting timber affirmed; appellate court found trial court held disputed land belonged to plaintiff so seller breached warranty deed by conveying property he did not own; appellate court held that trial court erred in denying neighbor’s breach of warranty claim and remanded for determination of damages). 


(motion to dismiss suit alleging 5th Amendment taking when Army Corp artificially breached levee and flooded farm during 2011 Mississippi River flood; Corp failed to establish immunity from liability under Flood Control Act of 1928; court reviewed claim under two-part framework established for flooding cases in Ridge Line, Inc. v. U.S., 346 F3d 1346, 1355 (Fed. Cir. 2003), which requires examination of intent behind government action and whether invasion appropriates benefit to government at expense of property owner; court dismissed first claim for failure to allege recovery under Ridge Line; court examined second claim based on floodway operation plan because plaintiffs failed to allege greater number of floods occurred under plan than would have occurred otherwise; court dismissed final claim alleging takings for sand and gravel deposits because deposits did not appropriate a benefit to government; court granted motion to dismiss all claims).


(U.S. Supreme Court opinion in Leegin Creative Leather Products v. PSKS, Inc., 551 U.S. 877 (2007) inapplicable to class of consumers that sued a unit of Leegin Creative Leather Products, Inc. on basis that unit’s pricing policy for retailers amounted to price-fixing under Kansas antitrust laws; trial court had granted summary judgment for unit on basis that the plaintiff class had not presented sufficient evidence that class had paid higher prices due to the unit’s pricing policies; Kansas Supreme Court reversed because class had presented enough evidence to infer that unit’s pricing policy was “subject to an inference” that it was utilized for the purpose of price fixing and price control; unit had, beginning in 1997, given retailers “pricing guidelines” where the price of goods subject to the guidelines were about twice the wholesale cost; as a result of Court’s decision, case returns to trial court for further review in accordance with Kansas competition law).


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