======================================================================== LexisNexis(tm) Electronic Advance Sheets Service March 02, 2001 ======================================================================== Dear Subscriber: Here are todayžs case summaries for the courts and legal topics you specified. To read the full text of any opinion, cut and paste the URL at the beginning of the case into a web browser. ======================================================================== TABLE OF CONTENTS US Circuit Courts of Appeals - 5th Circuit ---------------------------------------------- -GLENN v. CITY OF TYLER, 2001 U.S. App. LEXIS 2585 (Civil Procedure, Constitutional Law, Criminal Law & Procedure, Torts) -BROWN v. CITY OF DALLAS, 2001 U.S. App. LEXIS 2594 (Administrative Law, Civil Procedure, Constitutional Law, Governments & Legislation, Real Property Law) US Circuit Courts of Appeals - 6th Circuit ---------------------------------------------- -THOMASVILLE FURNITURE INDUS. v. JGR, INC., 2001 U.S. App. LEXIS 2505 (Civil Procedure, Commercial Law (UCC), Contracts Law) ======================================================================== To read the full text of this opinion, go to: http://www.lexisone.com/advcase/advcase?cite=2001+U.S.+App.+LEXIS+2585&cMD5=8530dfc8c5b636cf1daddc028b761b08 DEBORAH ANN GLENN, Plaintiff-Appellee, v. CITY OF TYLER; KYLE RHODES, Tyler Police Officer in his individual capacity; BRIAN TOMLIN, Tyler Police Officer in his individual capacity, Defendants-Appellants. No. 00-40133 UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT 2001 U.S. App. LEXIS 2585 February 22, 2001, Decided PRIOR HISTORY: [*1] Appeal from the United States District Court For the Eastern District of Texas. DISPOSITION: REVERSED AND REMANDED. CASE SUMMARY PROCEDURAL POSTURE: As a result of an arrest, plaintiff sued defendant city and two police officers pursuant to under the Americans with Disabilities Act (ADA), et seq., and for state law claims. The United States District Court for the Eastern District of Texas granted summary judgment for defendant officers on the ADA claim, but not on the other claims and defendants filed a notice of interlocutory appeal. OVERVIEW: Plaintiff filed suit after she was arrested for family violence assault. Plaintiff alleged that defendant officers unlawfully arrested her without probable cause; she was subjected to an unlawful search and seizure; defendant officer used excessive force by intentionally handcuffing her hands too tightly; and defendant officers violated the ADA. Defendants moved for summary judgment asserting qualified immunity. The district court granted summary judgment in part and denied it in part, finding that there were fact issues as to whether defendant officers' actions in arresting plaintiff were objectively reasonable, the circumstances surrounding plaintiff seizure, and the excessive force claim. Defendants filed a notice of interlocutory appeal. The appellate court reversed and remanded. Defendant officers exercised reasonable discretion based on their perception of the circumstances on the scene, so they were entitled to qualified immunity on the â 1983 claim. The arres!t was not conducted in an extraordinary manner and did not amount to an unreasonable seizure. There was no allegation of malice in handcuffing plaintiff, therefore there was no excessive force. OUTCOME: The district court's judgment was reversed regarding defendant officers' qualified immunity as to the federal claims. There was probable cause to arrest plaintiff, her arrest was not conducted in an extraordinary manner to amount to unreasonable seizure, and handcuffing too tightly, without more, did not amount to excessive force. CORE TERMS: arrest, qualified immunity, summary judgment, probable cause, earring, assault, immunity, excessive force, pulled, state law, multiple sclerosis, police car, ambulance, daughter, seizure, door, constitutional violation, reasonable person, summary judgment motion, arrested, handcuffs, tightly, Fourth Amendment, probable cause to arrest, air conditioner, police station, intentionally, deposition, physically, apartment ======================================================================== To read the full text of this opinion, go to: http://www.lexisone.com/advcase/advcase?cite=2001+U.S.+App.+LEXIS+2594&cMD5=713c2a02325bf8e25f43f9aecf76ce71 CHARLES FREEMAN and ROSALYN BROWN, Plaintiffs-Appellees-Cross-Appellants, v. CITY OF DALLAS, Defendant-Appellant-Cross-Appellee. No. 97-10907 UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT 2001 U.S. App. LEXIS 2594 February 22, 2001, Decided PRIOR HISTORY: [*1] Appeal from the United States District Court for the Northern District of Texas. DISPOSITION: Judgment against City REVERSED. CASE SUMMARY PROCEDURAL POSTURE: The parties cross-appealed from the United States District Court for the Northern District of Texas judgment on jury verdict awarding plaintiff property owners damages against defendant city after defendant demolished plaintiffs' condemned buildings. OVERVIEW: Defendant city served notices on plaintiffs, who owned two vacant, deteriorated buildings, warning them to repair or demolish the structures. Ultimately, defendant tore down the condemned buildings. Plaintiffs then sued defendant under for violating their rights under the U.S. Const. amend. IV and the Due Process Clause. The parties moved for summary judgment. The district court granted plaintiffs' motion on the U.S. Const. amend. IV claim and defendant's on due process. A jury verdict on damages was entered against defendant on the U.S. Const. amend. IV claim. A divided appellate panel held that defendant's procedures complied with due process but defendant had to obtain a pre-demolition warrant to satisfy the U.S. Const. amend. IV, because the demolition was a seizure, which required a warrant, and without which it was unreasonable and therefore unconstitutional. The appellate court en banc reversed, finding the seizure and demolition of plaintiffs' buildings, after condemnation according to city ordinance and state law, were constitutionally reasonable and a warrant was unnecessary. OUTCOME: Judgment against defendant was reversed. The ultimate test of reasonableness was fulfilled by defendant's adherence to its ordinances and procedures before ordering plaintiffs to abate their nuisance structures. Seizure and demolition of plaintiffs' buildings, after condemnation according to ordinance and state law, were reasonable. CORE TERMS: Fourth Amendment, seizure, reasonableness, nuisance, probable cause, demolition, inspection, repair, privacy, warrant requirement, warrantless, apartment, notice, inspector, landowner's, safeguard, ordinance, real property, balancing, abatement, urban, municipal, intrusion, inspect, exigent circumstances, demolish, standard of reasonableness, judicial review, eviction, law enforcement ======================================================================== To read the full text of this opinion, go to: http://www.lexisone.com/advcase/advcase?cite=2001+U.S.+App.+LEXIS+2505&cMD5=d923945e31a564856ca7bccc84eb8843 THOMASVILLE FURNITURE INDUSTRIES, INC., Plaintiff-Appellee, v. JGR, INC., Defendant-Appellant. Nos. 99-4480; 99-4481 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT 2001 U.S. App. LEXIS 2505 February 7, 2001, Filed NOTICE: [*1] NOT RECOMMENDED FOR FULL-TEXT PUBLICATION. SIXTH CIRCUIT RULE 28(g) LIMITS CITATION TO SPECIFIC SITUATIONS. PLEASE SEE RULE 28(g) BEFORE CITING IN A PROCEEDING IN A COURT IN THE SIXTH CIRCUIT. IF CITED, A COPY MUST BE SERVED ON OTHER PARTIES AND THE COURT. THIS NOTICE IS TO BE PROMINENTLY DISPLAYED IF THIS DECISION IS REPRODUCED. PRIOR HISTORY: ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO. 96-01424. Aldrich. 11-17-99. 96-01780. Aldrich. 11-18-99. DISPOSITION: District court's orders dismissing Defendant's motion for reconsideration and awarding summary judgment in favor of Plaintiff REVERSED and the question of the scope of the written terms of the 1992 Agreement REMANDED for further consideration. CASE SUMMARY PROCEDURAL POSTURE: Defendant appealed from an order of the United States District Court for the Northern District of Ohio dismissing defendant's motion for reconsideration and granting summary judgment in favor of plaintiff in plainitff's cases seeking payment for furniture which defendant purchased. OVERVIEW: Defendant entered a sales agreement with plaintiff, furniture manufacturer, after which plaintiff sent a letter stating that all its retailers had to comply with new showroom size requirements. In signing a second agreement defendant indicated, by a notation to his signature, his understanding that the letter with the size requirements was to be part of the agreement. Defendant was forced out of business due to a competitor who did not meet the size requirements. After plaintiff filed suit for failure to pay for goods and services, defendant filed a separate claim against plaintiff in state court, alleging that plaintiff's breach of contract and fraudulent misrepresentation caused defendant to go out of business, then removed the action to federal court. The court found that defendant's understanding of the parties' agreement as indicated by defendant's clarification of signature, plaintiff's delayed response to such clarification, and the second agreement's lack of !an integration clause, create a genuine issue of material fact as to whether the parties intended the letter to form part of the second agreement. Accordingly, entry of summary judgment for plaintiff was precluded. OUTCOME: The district court's orders dismissing defendant's motion for reconsideration and awarding summary judgment in favor of plaintiff were reversed and the question of the scope of the written terms of the second agreement was remanded for further consideration because it was unclear whether parties intended a letter to be included in the furniture sales contract. CORE TERMS: fair dealing, implied covenant, summary judgment, furniture, clarification, written contract, negotiations, assurance, signature, retailer, reconsideration, integration clause, genuine issue of material fact, written agreement, square footage, question of fact, oral contract, non-existent, duty, gallery, designation, marketing, fraudulent misrepresentation, parol evidence rule, breach of contract, diversity, oral agreement, integration, customers, street ======================================================================== If at any time you want to update your contact information or modifyyour court or legal topic selections, go to your Advance SheetSubscripions: http://www.lexisone.com/advmysub/advmysub?action=Continue&NextPage=ASMySubSummaryPage. Order Number: portal10555 If you have any questions, problems, or suggestions please contact us at:lexisone@lexisnexis.com Or call 1-800-LEXIS22 (1-800-539-4722). 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