Case Summaries

Corporation & Enterprise Law

[07/02] Chicago Bridge & Iron Co. v. Fed. Trade Comm'n
Petition for review an order of the Federal Trade Commission requiring petitioner to divest assets acquired from a Pennsylvania company since they would likely result in a substantial lessening of competition or tend to create a monopoly is denied where: 1) the FTC correctly applied the legal standards of burdens of proof and persuasion; 2) the FTC properly analyzed the "potential entry" defense and had substantial evidence to conclude that "potential entry" evidence was insufficient to rebut the prima facie case; 3) substantial evidence supported its factual findings; and 4) there was no abuse of discretion in the issuance of its remedy provisions.

[07/02] Rodriguez-Rivera v. Federico Trilla Reg'l Hosp. of Carolina
In a medical malpractice case against defendant-hospital presenting the issue of whether an Asset Purchase Agreement entered between past and present owners of the hospital absolved the current owner's liability for acts or omissions by the hospital's previous owners and/or operators, the circuit court finds that the terms of the asset purchase agreement not only could, but did, absolve the present owners from liability.

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Professional Malpractice

[07/02] Allen v. Brown Clinic, P.L.L.P
In a medical malpractice suit, jury verdict for defendant-doctor is affirmed over claims that the district court erred when it denied his motion to exclude for cause: 1) all jurors who had ever received medical treatment at a particular clinic or with a particular doctor; 2) all jurors who had family members who had been treated at the clinic or by the doctor; and 3) two jurors who had relatives with connections to the defendants. A claim that the district court erred in denying a motion to exclude defendants' medical expert is also rejected.

[06/26] Florida Bar v. Glueck
Upon review of a referee's report recommending that respondent be found guilty of professional misconduct and be suspended from the practice of law for three years, the court affirms the recommendation of guilt and changes the punishment to disbarment over claims of error regarding: 1) a finding that respondent formed a partnership with a non-lawyer; 2) whether the partnership's activities did not conduct constitute the practice of law; 3) findings of fact that respondent made misrepresentations to the Bar during its investigation; 4) findings of fact to support the recommendation of misconduct with regard to clients; and 5) the referee's failure to find mitigating factors.

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Banking Law

[07/03] Gen. Elec. Capital Corp. v. Future Media Prods., Inc.
In an appeal brought by an oversecured creditor in a bankruptcy matter, an order denying the creditor default interest and attorney's fees is reversed and remanded where: 1) the bankruptcy court improperly applied the circuit court's rule from In re Entz-White Lumber and Supply, Inc., 850 F.2d 1338 (9th Cir. 1988), to the facts of this case; and 2) the bankruptcy court should apply a presumption of allowability for the contracted for default rate, "provided that the rate is not unenforceable under applicable non-bankruptcy law."

[07/02] Cavin v. Home Loan Ctr., Inc.
In a suit involving a mailer sent by defendant announcing its mortgage program and claiming that defendant violated the Fair Credit Reporting Act by failing to present plaintiffs' with a firm offer of credit, summary judgment for defendant is affirmed where: 1) the letter at issue presented a firm offer of credit, despite the absence of some material terms and the minimal number of consumers who obtained the loan; and 2) thus, defendant did not violate the FCRA.

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Attorney's Fees

[06/30] Waltrip v. Kimberlin
In a priority dispute between competing liens, by a judgment creditor and debtor's attorney, over settlement proceeds, judgment finding the judgment lien had priority over the attorney lien is reversed and remanded where: 1) the creditor had a lien which did not cover commercial tort claims while the settlement proceeds at issue stemmed from commercial tort claims; 2) the attorney lien was created by the retainer agreement between plaintiffs and counsel, and it was created before creditor filed a notice of lien in the pending action; and 3) the notice of lien did not relate back to prior liens, as those liens covered different property.

[06/30] Sanders v. Lawson
The attorney's fees provision of the Elder Abuse Act does not authorize the award of trustee fees as costs.

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Habeas Corpus

[07/02] Leftwich v. Maloney
Judgment denying habeas relief is affirmed where there was sufficient evidence, for purposes of due process requirements, to ground a conviction for first-degree murder either as a principal or as a joint venturer.

[06/27] In Re: Schwab
Petitioner's application for permission to file a second or successive habeas petition on the basis of alleged alteration of expert testimony during his sentencing hearing is denied where: 1) nothing supports a finding that these contentions were previously unavailable at the time of petitioner's first habeas petition; and 2) purported "new evidence" has no bearing on petitioner's conviction and does not assert a constitutional error so as to justify the need for successive petitions.

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Military

[07/01] Clements v. Serco, Inc.
In an action by civilian military recruiters seeking a judgment that they are entitled to overtime compensation under the Fair Labor Standards Act, summary judgment for plaintiffs, as well as an award of back-pay calculated on the "fluctuating workweek" approach instead of the "time-and-a-half" approach, are affirmed where: 1) plaintiffs were not exempt "outside salesmen" because they were engaged in promotional work; 2) plaintiffs lacked authority to obtain a commitment from a prospective recruit; and 3) the "fluctuating workweek" method was appropriate since it is used when there is a clear mutual understanding of the parties that the fixed salary is compensation, apart from overtime premiums, for the hours worked each workweek, whatever their number, rather than for working 40 hours or another fixed period.

[06/20] Parhat v. Gates
In the first review of its kind under the Detainee Treatment Act (DTA), a Combatant Status Review Tribunal's (CSRT) determination that petitioner-Chinese Guantanamo detainee is an "enemy combatant" is reversed and remanded where: 1) the record before petitioner's CSRT was insufficient to support a finding that he was an enemy combatant, even under the Defense Department's own definition of that term; and 2) the government is directed to release petitioner, transfer him, or convene a new CSRT to consider properly submitted evidence.

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Securities Law

[07/01] Donell v. Kowell
In a suit arising to recover gains made by defendant, an innocent investor, from a Ponzi scheme, a judgment requiring him to disgorge his profits as fraudulent transfers under the Uniform Fraudulent Transfer Act is affirmed where the circuit court: 1) adopted the largely uniform analysis used for applying the UFTA to allow recovery from investors in a Ponzi scheme, and describes a two-step process for determining the existence and amount of liability; 2) found there was no error in the district court's application of such analysis; 3) rejected arguments that courts should not be allowed to require innocent investors to disgorge net profits; and 4) declined to permit good faith investors to claim offsets for taxes or other expenses paid in connection with receipt and management of income from a Ponzi scheme.

[07/01] JPMorgan Chase & Co. v. Comm'r of Internal Revenue
In a case involving the taxation of JPMorgan's income from swap transactions, a ruling that certain income deferrals it attempted were not proper and that JPMorgan's valuation methodology did not clearly reflect income, is affirmed where there was no error in a tax court's acceptance of the Commissioner's computations regarding the amounts of certain carve-outs.

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Judges & Judiciary

[06/30] ORANGE COUNTY EMPLOYEES ASS'N, INC. v. THE SUPERIOR COURT OF ORANGE COUNTY
The Court denied plaintiff's petition for writ of mandate to disclose records relating to reimbursement of travel expenses for judges and management employees of the Court pursuant to the California Public Records Act, because the Act did not apply to the requested disclosure.

[06/28] US v. PARKER
Evidence seized under a warrant issued by a trial commissioner who was also an administrative assistant at the county jail was properly excluded, because the commissioner was not a neutral and detached party.

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Government Benefits

[06/26] John B. v. Goetz
In a class action suit related to Tennessee's TeenCare program seeking to enforce certain provisions of the Social Security Act, defendant's request for mandamus relief from two discovery orders is granted in part where: 1) disobeying the order and appealing a citation for contempt would not be an adequate means to attain relief; 2) the orders will cause defendants to suffer damage or prejudice that cannot be corrected on appeal; 3) the district court abused its discretion since it failed to account properly for the significant privacy and confidentiality concerns in the case; and 4) there were issues of federalism and comity that are not present in typical civil litigation.

[06/25] Clark v. Astrue
In proceedings arising from a Social Security disability benefits case, an order denying in part claimant's attorney's request for attorney's fees pursuant to 42 U.S.C. section 406(b) is reversed and remanded for reconsideration where, contrary to the lower court's ruling, the plain text of section 406(b) limits only the amount of attorney's fees awarded under section 406(b), and not the combined fees awarded under both sections 406(a) and 406(b).

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Ethics & Professional Responsibility

[06/25] People v. Grasso
In an action charging defendant Richard Grasso, former chairman and CEO of a public corporation, with receiving excessive compensation from NYSE, judgment for defendant is affirmed where: 1) each of the challenged causes of action sought to ascribe defendant's liability based on the mere "size" of his compensation package; however; 2) the legislature's specifically enacted statute requires more to overcome the hurdles of the business judgment defense.

[06/25] Marmelstein v. Kehillat New Hempstead: The Rav Aron Jofen Cmty. Synagogue
In an action for breach of fiduciary duty against a cleric-defendant premised on his alleged inducement of a consenting sexual relationship which lasted for over 3 years, the court of appeals finds no breach of fiduciary duty when: 1) plaintiff had only shown that she was deceived by the cleric, not that she was vulnerable as to surrender her will and capacity to determine her own best interest; and 2) in absence of a prima facie showing of a fiduciary obligation owed by defendant, no cause of action can be maintained for an extended voluntary sexual affair between consenting adults, even if plaintiff could prove that her acquiescence was obtained through lies, manipulation, or other morally opprobrious conduct.

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ERISA

[07/02] Sgro v. Danone Waters of N. Am., Inc.
In an ERISA action arising from a denial of plaintiff's claim for disability benefits, dismissal of plaintiffs' claims is affirmed in part and vacated in part where: 1) dismissal of state law claims was proper as defendant's disability plan is governed by ERISA, but the dismissal should have been without prejudice; 2) a California insurance regulation does not require defendants to reimburse plaintiff for the cost of copying the medical records that defendant-insurer/administrator requested, as that regulation is preempted by ERISA; 3) defendants did not violate ERISA's regulation on "claims procedures" by requiring documentation from plaintiff regarding his claim; and 4) a remand was required in part as to dismissal of a claim that defendants violated ERISA section 1132(c)(1) for failing to turn over certain documents.

[07/02] Newell Operating Co. v. Int'l Union of United Auto., Aerospace, & Agric. Implement Workers of Am.
In a declaratory judgment suit arising from plaintiff's decision to amend its employee welfare benefits plan to allow administrators to charge retirees uniform monthly premiums, dismissal of the case is affirmed where: 1) jurisdiction did not exist under section 502(a)(3) of ERISA since the declaratory judgment action was not designed to enforce any provisions of the plan or makes any valid allegations that ERISA will be violated; and 2) although plaintiff's LMRA section 301 claims fall within the statute, the request for declaratory judgment is covered by the Declaratory Judgment Act and the court used the discretion given under the Act to decline jurisdiction.

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Labor & Employment Law

[07/03] Crowley Marine Servs. Inc. v. Maritrans Inc.
In an action arising out of the collision of plaintiff's tug boat with defendants' oil tanker, a district court's reallocation of fault in the matter is affirmed where: 1) the district court did not err in considering the coordinated nature of the tug escort, the tug boat's violations of Rules 5 and 17(b), or the negligence of both plaintiff and the tug's captain; and 2) it did not err in apportioning 70% of the responsibility for the collision to the tug boat.

[07/03] BNSF Ry. Co. v. Swanson
Provisions of Minnesota Statute sections 609.849(a)(1) and (a)(2), governing a railroad's treatment of injured workers, are both preempted by the Internal Control Plans regulations adopted by the Federal Railroad Administration pursuant to the Federal Railroad Safety Act.

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Government Contracts

[07/02] City of Geneseo v. Utilities Plus
In an action to recover damages from corporate defendant based on claims of contractual breach, unjust enrichment, promissory estoppel, and fraud, summary judgment for defendant is affirmed where: 1) defendant's president was found to lack actual authority to enter a binding contract on the company's behalf; 2) the doctrine of apparent authority, which was limited under state laws, did not alternatively create a contract to be enforced; and 3) plaintiff had no basis to recover damages under alternative principles of contractual remedies.

[06/27] Impresa Construzioni Geom. Domenico Garufi v. U.S.
In proceedings involving an application for Equal Access to Justice Act (EAJA) fees and other expenses relating to petitioner's successful bid protest, denial of the application as untimely is reversed and remanded where: 1) the circuit court adopts a uniform rule for EAJA petitions in the Court of Federal Claims, whereby appeal rights from voluntary dismissals are presumed unless expressly disclaimed or specifically prohibited; and 2) petitioner's period for filing its EAJA fee application started upon expiration of the period for filing a petition for certiorari from the final judgment of the Federal Circuit.

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Judgment Enforcement

[06/25] Landau, P.C. v. LaRossa, Mitchell & Ross
A judgment dismissing a complaint without prejudice on the basis of a corporation's lack of capacity does not have res judicata effect on a subsequent action brought by the corporation's successor.

[06/20] Talbot v. Hustwit
Judgment entered against defendants on a guaranty agreement after lender foreclosed on real property securing a loan made to a trust structured by defendants is affirmed where: 1) case law has uniformly held the requirements for a deficiency judgment under Code of Civil Procedure 580a inapplicable to guarantors; and 2) considering the manner in which defendants structured the trust arrangement to detach from debts owed by the trust, there was ample basis for finding them not principal obligors to the loan, but true guarantors.

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Contracts

[07/03] Gen. Elec. Capital Corp. v. Future Media Prods., Inc.
In an appeal brought by an oversecured creditor in a bankruptcy matter, an order denying the creditor default interest and attorney's fees is reversed and remanded where: 1) the bankruptcy court improperly applied the circuit court's rule from In re Entz-White Lumber and Supply, Inc., 850 F.2d 1338 (9th Cir. 1988), to the facts of this case; and 2) the bankruptcy court should apply a presumption of allowability for the contracted for default rate, "provided that the rate is not unenforceable under applicable non-bankruptcy law."

[07/03] United Steel, Paper & Forestry, etc. v. TriMas Corp.
In an action to compel arbitration under the Labor-Management Relations Act (LMRA) arising out of the parties' dispute over a neutrality agreement, summary judgment for union is affirmed where the district court correctly: 1) found that the dispute was covered by the language of the arbitration clause; and 2) left consideration of certain extrinsic evidence to the arbitrator.

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Evidence

[07/03] US v. Morriss
Denial of a motion to suppress statements made outside the presence of counsel is affirmed over defendant's claims that: 1) the district court erroneously found his Sixth Amendment right to counsel did not attach during an interview in which he provided inculpatory statements; and 2) the government violated his due process rights by interviewing him during a lapse in representation.

[07/03] US v. Anderson
A conviction for insider trading and money laundering is affirmed over claims of error that: 1) the government's evidence was insufficient to convict him, 2) the district court erred in failing to give his theory-of-the-case jury instruction; and 3) that he is entitled to a new trial. The sentence is affirmed over the government's claims of error that the sentence was unreasonable because the court erroneously excluded certain stock sales as relevant conduct when considering the U.S.S.G. for illegal insider training.

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Commercial Law

[07/02] Deckers Corp. v. US
In a suit contesting the proper classification of three styles of sports sandals under the Harmonized Tariff Schedule of the United States, a decision holding that the merchandise was properly classified under subheading 6404.19.35 is affirmed where the sandals at issue have open toes and open heels, and lack the features of the named exemplars of 6406.11.80, and thus the imported goods are not classifiable under that subheading notwithstanding their claimed status as athletic footwear.

[07/02] Cavin v. Home Loan Ctr., Inc.
In a suit involving a mailer sent by defendant announcing its mortgage program and claiming that defendant violated the Fair Credit Reporting Act by failing to present plaintiffs' with a firm offer of credit, summary judgment for defendant is affirmed where: 1) the letter at issue presented a firm offer of credit, despite the absence of some material terms and the minimal number of consumers who obtained the loan; and 2) thus, defendant did not violate the FCRA.

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Corp. Governance

[07/02] City of Geneseo v. Utilities Plus
In an action to recover damages from corporate defendant based on claims of contractual breach, unjust enrichment, promissory estoppel, and fraud, summary judgment for defendant is affirmed where: 1) defendant's president was found to lack actual authority to enter a binding contract on the company's behalf; 2) the doctrine of apparent authority, which was limited under state laws, did not alternatively create a contract to be enforced; and 3) plaintiff had no basis to recover damages under alternative principles of contractual remedies.

[07/01] In the Matter of Venigalla v. Nori
Article 9 of the Religious Corporations Law does not provide for any elections, other than votes of the trustees themselves. Thus, provisions in the bylaws of an entity incorporated under the Religious Corporations Law, which called for election of trustees by the "General Body", facially contradicted Article 9 and were invalid from their inception.

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Civil Rights

[07/03] Easley v. Reuss
On petition for rehearing, the circuit court grants a petition to cure an administrative error to a prior order but declines further review where: 1) petitioner failed to meet the strict requirements of Appellate Rule 35 for a hearing en banc; and 2) petitioner was raising issues that were not previously raised.

[07/03] White v. Baxter Healthcare Corp.
In an employment discrimination suit brought under federal and Michigan state law, summary judgment for defendant is reversed and the case is remanded for a new trial where: 1) plaintiff offered sufficient evidence to suggest that defendant's purported reason for not promoting him had no basis in fact, did not motivate defendant's decision, or was not sufficient to explain its hiring choice; and 2) plaintiff produced sufficient evidence for a reasonable jury to find in his favor on both single motive and mixed motive race discrimination claims.

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Sanctions

[07/03] Kountze v. Gaines
In an action seeking to remove trustees from an educational board, summary judgment for defendants and imposition of sanctions on plaintiff are both affirmed where: 1) the district court did not err in finding that plaintiff was not a member of the board at the time he filed this derivative action and that he lacked capacity under state law to bring the action; and 2) there was no abuse of discretion in sanctioning plaintiff on basis that he included a defendant for improper purpose, knowing that the claims against it were barred by a prior dismissal.

[06/30] US v. Morse
In proceedings arising from investigations into defendant's tax filing, grant of the government's petition to enforce IRS summons to provide testimony and produce documents to assess defendant's tax liability is affirmed where defendant's tax liability challenges were insufficient to rebut the government's prima facie case for enforcing the summons. Also, the government's request for imposing sanctions upon defendant is granted where defendant asserted frivolous arguments while previously warned against raising them.

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Sentencing

[07/03] Tablada v. Thomas
In a case involving whether the Bureau of Prisons (BOP) violated the Administrative Procedure Act (APA) in promulgating a regulation interpreting 18 U.S.C. section 3624(b), which governs the calculation of good conduct time for federal prisoners, the court finds that: 1) the BOP concededly violated the APA by failing to articulate a rational basis for its decision to promulgate the regulation; but 2) the remedy for the violation is to interpret the federal statute in accordance with the BOP's Program Statement 5880.28; and 3) the BOP's methodology for calculating good time credits under Statement 5880.28 was both reasonable and persuasive under applicable law.

[07/03] US v. Dodds
Sentence for possession of child pornography is affirmed over claims that: 1) the district court failed to adequately consider relevant sentencing factors; and 2) defendant's due process rights were violated because the sentence was imposed after the government presented an inaccurate picture of relevant conduct.

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Criminal Law & Procedure

[07/03] Tablada v. Thomas
In a case involving whether the Bureau of Prisons (BOP) violated the Administrative Procedure Act (APA) in promulgating a regulation interpreting 18 U.S.C. section 3624(b), which governs the calculation of good conduct time for federal prisoners, the court finds that: 1) the BOP concededly violated the APA by failing to articulate a rational basis for its decision to promulgate the regulation; but 2) the remedy for the violation is to interpret the federal statute in accordance with the BOP's Program Statement 5880.28; and 3) the BOP's methodology for calculating good time credits under Statement 5880.28 was both reasonable and persuasive under applicable law.

[07/03] US v. Morriss
Denial of a motion to suppress statements made outside the presence of counsel is affirmed over defendant's claims that: 1) the district court erroneously found his Sixth Amendment right to counsel did not attach during an interview in which he provided inculpatory statements; and 2) the government violated his due process rights by interviewing him during a lapse in representation.

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Legal Malpractice

[07/02] Allen v. Brown Clinic, P.L.L.P
In a medical malpractice suit, jury verdict for defendant-doctor is affirmed over claims that the district court erred when it denied his motion to exclude for cause: 1) all jurors who had ever received medical treatment at a particular clinic or with a particular doctor; 2) all jurors who had family members who had been treated at the clinic or by the doctor; and 3) two jurors who had relatives with connections to the defendants. A claim that the district court erred in denying a motion to exclude defendants' medical expert is also rejected.

[07/02] Rodriguez-Rivera v. Federico Trilla Reg'l Hosp. of Carolina
In a medical malpractice case against defendant-hospital presenting the issue of whether an Asset Purchase Agreement entered between past and present owners of the hospital absolved the current owner's liability for acts or omissions by the hospital's previous owners and/or operators, the circuit court finds that the terms of the asset purchase agreement not only could, but did, absolve the present owners from liability.

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Constitutional Law

[07/03] Easley v. Reuss
On petition for rehearing, the circuit court grants a petition to cure an administrative error to a prior order but declines further review where: 1) petitioner failed to meet the strict requirements of Appellate Rule 35 for a hearing en banc; and 2) petitioner was raising issues that were not previously raised.

[07/03] MLC Automotive, LLC v. Town of Southern Pines
In a suit alleging that the rezoning of a certain piece of real estate violated plaintiff's common law vested rights in the property and its federal and state substantive due process rights, denial of defendants' Rule 60(b) motion is affirmed where: 1) defendant-town's Rule 60(b) motion was filed within ten days of the original judgment, called into question the correctness of the judgment, and is properly construed as a Rule 59(e) motion; 2) the district court did not abuse its discretion in concluding that Burford abstention was appropriate because the case involved difficult issues of state land use policy.

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Administrative Law

[07/03] Tablada v. Thomas
In a case involving whether the Bureau of Prisons (BOP) violated the Administrative Procedure Act (APA) in promulgating a regulation interpreting 18 U.S.C. section 3624(b), which governs the calculation of good conduct time for federal prisoners, the court finds that: 1) the BOP concededly violated the APA by failing to articulate a rational basis for its decision to promulgate the regulation; but 2) the remedy for the violation is to interpret the federal statute in accordance with the BOP's Program Statement 5880.28; and 3) the BOP's methodology for calculating good time credits under Statement 5880.28 was both reasonable and persuasive under applicable law.

[07/03] Lands Council v. McNair
Denial of a preliminary injunction to halt a project, which called for the selective logging of 3,829 acres in a national forest, is affirmed where: 1) plaintiff was not likely to succeed on any of its claims under the National Forest Management Act (NFMA) or the National Environmental Policy Act (NEPA); and 2) plaintiff failed to show that, if the Forest Service were allowed to proceed with the project, the balance of hardships tipped sharply in its favor. (En banc opinion)

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Ethics & Disciplinary

[06/26] Florida Bar v. Glueck
Upon review of a referee's report recommending that respondent be found guilty of professional misconduct and be suspended from the practice of law for three years, the court affirms the recommendation of guilt and changes the punishment to disbarment over claims of error regarding: 1) a finding that respondent formed a partnership with a non-lawyer; 2) whether the partnership's activities did not conduct constitute the practice of law; 3) findings of fact that respondent made misrepresentations to the Bar during its investigation; 4) findings of fact to support the recommendation of misconduct with regard to clients; and 5) the referee's failure to find mitigating factors.

[06/24] Black v. Shultz
In an attorney malpractice suit arising from a law firm's negligent representation of a client's sexual harassment claims against her employer, judgment in favor of client and amount of damages awarded by the jury is affirmed where: 1) law firm failed to show how it was prejudiced or denied of a fair trial by client's violation of an in limine order; and 2) the district court did not err in submitting separate jury instructions for client's sexual harassment claim and counsel's negligent misrepresentation, as the record suggested that counsel failed to render competent legal advice in other instances as well.

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Asset Forfeiture

[07/01] US v. Andrews
In a prosecution for wire fraud and money laundering in which defendant agreed to forfeit remaining money to the government for division among her victims, denial of a request to impose a constructive trust that would grant claimants priority to the money over defendant's other victims is affirmed where the district court did not abuse its discretion in deciding that the traditional purpose of a constructive trust, avoiding unjust enrichment, would not be served here because the parties in opposition to claimants were other fraud victims, who would not be unjustly enriched by receiving appropriate shares of defendant's remaining loot.

[07/01] Stevens v. US
In proceedings arising from a criminal prosecution, denial of petitioner's motion to return property is affirmed where: 1) the government met its burden of showing that it was no longer in possession of the items seized; 2) there is no presumption of untruthfulness in a Fed. R. Crim. P. 41(g) proceeding; and 3) defendant may not challenge his conviction by way of a Rule 41(g) motion.

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Civil Procedure

[07/03] Followell v. US
In a dispute between plaintiffs and the Environmental Protection Agency involving underlying Comprehensive Environmental Response Compensation and Liability Act (CERCLA) claims against plaintiffs and the EPA's attempts to collect on their resultant debt, dismissal of plaintiffs' claim is affirmed pursuant to Eighth Circuit Rule 47B for the reasons stated by the district court in its opinion.

[07/03] City of Jefferson City v. Cingular Wireless LLC
A declaratory judgment finding a wireless service provider of telecommunication services subject to local business taxes is affirmed where: 1) city's request for declaratory judgment on the issue of tax liability was properly before the district court and 2) a cell phone is a telephone and cell phone services are telephonic services for purposes of the city's tax ordinance.

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