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Posted by: Karen Belcher on Aug 7, 2020

NALBANDIAN, Circuit Judge. The Immigration and Nationality Act makes clear that parties must exhaust their claims with the Board of Immigration Appeals before we can review them. This gives the Departments of Justice and Homeland Security “a full opportunity to consider a petitioner’s claims, [and] avoid[s] premature interference with the agenc[ies’] processes[.]” Ramani v. Ashcroft, 378 F.3d 554, 559 (6th Cir. 2004) (citation omitted). Alain Cuevas-Nuno failed to administratively exhaust each of the claims he brings before us. So we DISMISS his petition for lack of jurisdiction.

Posted by: Karen Belcher on Aug 7, 2020

SUTTON, Circuit Judge. The Randolph-Sheppard Act, found at 20 U.S.C. §§ 107 to 107f, requires government agencies to set aside certain contracts for sight-challenged vendors. Although the law applies primarily to federal agencies, States take the lead in licensing the vendors and matching them with available contracts. In 2010, the State of Michigan denied Sheila Armstrong’s bid for a contract to stock vending machines at highway rest stops in the State. Convinced that the denial stemmed from a record-keeping error, Armstrong complained. After pursuing relief in state administrative proceedings, federal arbitration, and most recently the district court, she remains dissatisfied with the results.

Her appeal prompts two questions: Was the unfavorable arbitration decision arbitrary or capricious under the Administrative Procedure Act? And may Armstrong sue under 42 U.S.C. § 1983 to vindicate her rights under the Randolph-Sheppard Act? Because the answer to both questions is no, we affirm.

Posted by: Karen Belcher on Aug 7, 2020

This case involves alleged child abuse by the mother’s paramour. After receiving a referral for potential child abuse, the Department of Children’s Services filed a dependency and neglect petition seeking injunctive relief, an ex parte order, and to transfer temporary legal custody of two minor children. After a hearing on the petition, the juvenile court found that the paramour committed severe child abuse. The paramour appealed to the circuit court. The circuit court also found there was clear and convincing evidence to show the paramour committed severe child abuse and that the abused child was dependent and neglected. We affirm the circuit court’s findings and remand.

Posted by: Karen Belcher on Aug 7, 2020

This case involves a lease that allowed a restaurant to operate inside a hotel building. During the term of the lease, the original owner-lessor sold the hotel building to a successor, who then sold the hotel building to the appellant. The appellant tried to “buy out” the tenant and cancel the lease, but the tenant refused. The appellant proceeded with demolition of the interior of the hotel. Thereafter, the tenant experienced a series of problems with the building, including major water leaks, lack of climate control, and other problems, which led the tenant to file this lawsuit. After a three-day bench trial, the trial court concluded that the appellant maintained the premises in an uninhabitable state, amounting to a constructive eviction of the tenant. The trial court found that the appellant repeatedly and intentionally disturbed the tenant’s quiet enjoyment of the premises through its failure to maintain climate control in the hotel, failure to maintain windows and doors in the building, and allowing the building to be closed by Shelby County Code Enforcement for approximately six months. It found that the appellant engaged in extreme, outrageous, and intentional conduct intended to destroy the tenant’s business and drive the tenant to vacate the premises, constituting an unlawful ouster of the tenant and retaliatory eviction. The trial court calculated the tenant’s lost profits for the remaining term of the lease at $595,025. Due to the extremity of the appellant’s actions, the trial court also awarded the tenant punitive damages. On appeal, the appellant does not challenge the trial court’s findings regarding liability on the underlying causes of action. It only challenges the calculation of the award of lost profits and the award of punitive damages. For the following reasons, we affirm the award of lost profits as modified but vacate and remand for further proceedings regarding punitive damages.

Posted by: Karen Belcher on Aug 7, 2020

The Defendant, Charles Thomas Johnson, was convicted by a Lincoln County Circuit Court jury of possession of heroin with the intent to sell, possession of heroin with the intent to deliver, possession with the intent to sell 0.5 gram or more of cocaine, and possession with the intent to deliver 0.5 gram or more of cocaine, Class B felonies. See T.C.A. § 39-17-417 (2018). After the appropriate merger, the trial court imposed consecutive terms of twelve years for possession with the intent to sell heroin and eight years for possession with the intent to sell cocaine, for an effective twenty years’ confinement. The trial court ordered the Defendant to serve his effective sentence consecutively to a conviction in an unrelated case. On appeal, the Defendant contends that (1) the evidence is insufficient to support his convictions, (2) the trial court erred by denying his motion to dismiss pursuant to State v. Ferguson, 2 S.W.3d 912 (Tenn. 1999), based on lost or destroyed evidence, and (3) the trial court erred by denying his request for alternative sentencing and by imposing consecutive service. We affirm the judgments of the trial court.

Posted by: Karen Belcher on Aug 7, 2020

On September 3, 2019, Vaughn Harris, Petitioner, filed pro se petitions for post- conviction relief in three Davidson County cases. The petitions were filed years after the one-year statute of limitations in Tennessee Code Annotated section 40-30-102(a) had expired. The post-conviction courts summarily dismissed the petitions as untimely. Petitioner appealed claiming that the statutory exceptions in Tennessee Code Annotated section 40-30-102(b) provided jurisdiction for the post-conviction courts to consider the petitions and/or that he was entitled to due process tolling of the statute of limitations. Pursuant to Tennessee Rule of Appellate Procedure 16(b), we ordered the three appeals to be consolidated because they involved “common questions of law and/or common facts.”1 After review of the record and applicable law, we affirm the summary dismissal in all three cases.

Posted by: Karen Belcher on Aug 7, 2020

Donte Anton Davis, Defendant, was indicted by a Coffee County grand jury for violation of the Sex Offender Registry. Defendant entered a guilty plea, and the trial court sentenced Defendant as a career offender to serve six years in confinement. Defendant filed a timely notice of appeal and argues that his sentence was excessive and that the trial court failed to include specific findings to support its denial of the mandatory minimum sentence. The State argues that the trial court exercised proper discretion and sentenced Defendant appropriately. After a thorough review of the record, we find no error in the judgment of the trial court.

Posted by: Karen Belcher on Aug 7, 2020

This is the second appeal by a father of the termination of his parental rights to his two minor children. The trial court determined that termination of the father’s rights was in the best interest of the children after finding he failed to manifest an ability and willingness to assume custody of the children and abandoned them by engaging in conduct that exhibited a wanton disregard for their welfare. In the first appeal, we vacated the judgment of the trial court because its findings of fact failed to comply with the mandate in Tenn. Code Ann. § 36-1-113(k) and remanded for the trial court to make additional findings of fact on two grounds—abandonment by wanton disregard and failure to manifest an ability and willingness to assume custody of or financial responsibility for the children—and on whether termination of the father’s parental rights was in the children’s best interests See In re Nakayia S., No. M2017-01694-COA-R3-PT, 2018 WL 4462651, at *5–6 (Tenn. Ct. App. Sept. 18, 2018). In this appeal, the father contends the court improperly based its decision on one child’s out of court allegations of abuse, and he asserts that he manifested ability and willingness to assume custody by complying with the permanency plan requirements. We have determined that the child’s statements were properly admitted under Tennessee Rule of Evidence 803, and the preponderance of the evidence is not against the trial court’s findings, which amount to clear and convincing evidence of the elements necessary to terminate the father’s parental rights. Accordingly, we affirm the termination of the father’s parental rights.

Posted by: Karen Belcher on Aug 7, 2020

This is an interlocutory appeal as of right, pursuant to Rule 10B of the Rules of the Supreme Court of Tennessee, filed by Nedra R. Hastings (“Petitioner”), seeking to recuse a special judge in this case involving child support matters. Having reviewed the petition for recusal appeal filed by Petitioner, and finding it fatally deficient, we dismiss the appeal.

Posted by: Karen Belcher on Aug 7, 2020

In this parental termination case, the trial court found two statutory grounds for termination of a father’s parental rights: severe child abuse and failure to manifest an ability and willingness to assume custody. The trial court also found that termination of the father’s parental rights was in his child’s best interest. Because the record contains clear and convincing evidence to support the grounds for termination and the best interest determination, we affirm.


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