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now that this court is reexamining that question, i am satisfied with the conclusion that under our statutory law, the husband has no such right and that gist v. french, supra, should be disapproved.

see ante at .

(pen. code, 1203.1, subd. (a)(3) [in granting probation, court ""shall provide for restitution in proper cases""]; people v. giordano (2007) 42 cal.4th 644, 652.)

adoption of leland, 65 mass. app. ct. 580, 584 (2006), quoting from care & protection of bruce, 44 mass. app. ct. 758, 761 (1998).

nevertheless, if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the mover's burden does not require that all essential elements of the adverse party's claim, action, or defense be negated.

ramirez has shown that reasonable jurists would debate whether the district court erred in dismissing his 2255 motion without prejudice as premature based on a finding that he had a pending direct appeal.

however, we disapprove angelus to the extent that it holds section 733.212(3) does not bar objections that a personal representative was never qualified to serve.

it argued that it had made timely assessments and that those assessments were presumptively correct.

{19} in state v. underwood, 124 ohio st.3d 365, 2010-ohio-1, 922 n.e.2d 923, the ohio supreme court held that ""[a] sentence is 'authorized by law' and is not appealable within the meaning of r.c. 2953.08(d)(1) only if it comports with all mandatory sentencing provisions.""

that language, unlike 114, does not limit the safe harbor to infringements of federal copyright.

42 pa.c.s.a. 6302 (1). under the common law rule, the child thus reaches the age of 18 years the day before his or her birthdate.

while in many cases the calculation may, as a matter of fact, run from the date the complaint was filed (because the person making service received the summons and complaint on the same day) or run from expiration of the statute of limitation (because the complaint was filed on the last day of the limitation period and the complaint and summons was received by the person making service on the same day), to the extent these cases misstate the proper rule to be applied generally, they must be overruled.

the department need not prove all of the holley factors as a ""condition precedent"" to termination, and the absence of some factors does not bar the factfinder from finding by clear and convincing evidence that termination is in a child's best interest.

the administrator must then review the petition within 60 days and object if the petitioner ""demonstrates"" a permit applicant's noncompliance with caa requirements. nypirg, 321 f.3d at 333; 42 u.s.c. 7661d(b)(2).

we recede from these cases to the extent that they suggest that postconviction relief is appropriate where the record does not demonstrate that an actually biased juror served on the jury.

statements such as this did not violate defendants' fifth amendment rights.

in other words, in lieu of trapping an unwary defendant, see tr. of oral arg. 29, i would rank the clerk's transmission of the amended judgment to the court of appeals as an adequate substitute for a second notice of appeal.

accordingly, we hereby overrule sharp v. state

to the extent our previous decisions in duckett, tate, lovelady, and andrews are in conflict with this decision, they are expressly overruled.

7 here, in 2010, the mpo policy committee adopted a long-range metropolitan transportation plan, which apparently also encompassed a short-range forecast, called the ""go to 2040"" plan, which the chicago metro planning agency board likewise determined would serve as its comprehensive regional plan. according to a federal report, the ""go to 2040"" was chicago's first comprehensive regional plan in more than 100 years, addressing an array of issues like transportation, housing, economic development, open space, the environment, and quality-of-life matters in the region's 284 communities.

we agree with the district court that the political question doctrine bars the servicemembers' suit. therefore, we need not reach the ftca preemption issue.

id. ""if the trial court's findings of fact are upheld, the appellate court must decide whether the dispositive ruling was fair and equitable in light of those facts.""

{19} to prove ineffective assistance of counsel, the defendant must satisfy a two-prong test: first, counsel's performance has fallen below an objective standard of reasonable representation and second, appellant was prejudiced by counsel's performance.

in this connection, to the extent that our holding conflicts with this court's decision of dugard v. state, 688 s.w.2d 524 (tex.cr.app. 1985), dugard is expressly overruled.

for the reasons stated, the rule of swain v. alabama is not to be followed in our courts and the cases applying it are disapproved to that extent.

to the extent this court's decisions in jones and bun suggested otherwise, they are hereby disapproved.

the apa provides that judicial review is available for ""final agency action[s] for which there is no other adequate remedy in a court.""

both of those exhibits were admitted without objection.

see tr., vol. 2 at 99.

to the extent that stewart indicates that a defendant may be convicted of and sentenced for both of those offenses involving the death of the same victim, that case is disapproved.

clarity, 838 n.w.2d at 661 ; see hauser, 782 n.w.2d at 154 (""to the extent [the attorney] acknowledges his alcoholism and has taken steps to address it ..., we consider

the principle underlying gaines, however, leads us to now reject the instruction we once approved in tolkow and to overrule that holding.

we therefore hold that diamond ii must be overruled.

we overrule division 2 in ghrist v. fricks and division 2 in matthews v. dukes, 314 ga.app. 782, 726 s.e.2d 95 (2012), to the extent they determined that the superior court had jurisdiction to sever parental rights because the termination issue was ancillary to the biological father's petition to legitimate.

to the extent that our opinions in baker v. mayor and city council of baltimore, 894 f.2d 679, 682 (4th cir.), cert. denied, 498 u.s. 815 (1990), and schlitz v. commonwealth of virginia, 854 f.2d 43, 45-46 (4th cir. 1988), can be read to confer legislative immunity on municipalities from suits brought under section 1983, those decisions are overruled.

to the extent that hoover, isom, birch, williams, and any other prior cases are inconsistent with our holding today, they are hereby expressly overruled.

evans must therefore be overruled.

the court noted that the ""requirement of gubernatorial approval for obtaining a parole [has] the force of law, and is not a discretionary internal policy[.]""

however, so far as it may appear to indicate that it is necessary for the winning party to an interference to file a cross-appeal in order to be entitled to argue any matter relevant to the issue of priority of invention which has been raised by him before the board, and which has been decided adversely to him, the statement contained in the sentence in question is at variance with the established practice of this court as set forth in the decisions cited above, and is accordingly overruled.

see section iii(a)(3)(b)(i)(2)(c); see also bnsf app'x at 931-32.

under an estoppel theory, ""[a] nonsignatory is estopped from refusing to comply with an arbitration clause when it receives a 'direct benefit' from a contract containing an arbitration clause.""

nonetheless, we must recede from williams v. state, 427 so.2d 768 (fla. 2d dca 1983), and matthews v. state, 584 so.2d 1105 (fla. 2d dca 1991), to the extent that these opinions engraft a "fair trial" standard upon the faretta test, and we disapprove steps four through six of the faretta inquiry in jones v. state, 658 so.2d 122 (fla. 2d dca 1995) (altenbernd, j., specially concurring), which relied upon williams and matthews.

to the extent that these cases improperly place the burden of showing or proving sudden heat on the defendant, and to that extent only, these cases are overruled.

it is well settled that the court can award restitution even in the absence of such a request by the public prosecutor.

to the extent that owen is inconsistent with this opinion, it is overruled.

beck v. city of muskogee police dep't, 195 f.3d 553, 557 (10th cir. 1999) (citing smith v. city of enid ex rel. enid city comm'n, 149 f.3d 1151, 1154 (10th cir. 1998)).

to the extent that apodaca can be read to suggest otherwise, it should not be followed.

the staff analysis of the bill references the conflict between paul v. jenne, 728 so.2d 1167 (fla. 4th dca), rev. granted, 741 so.2d 1137 (fla. 1999), and houser v. manning, 719 so.2d 307 (fla. 3d dca 1998), suggesting that a primary motivation behind the statute was to legislatively overrule the result in paul.

ct. app. 1992), and state ex rel. department of pub. safety v. 1989 ford probe, vin # 1zvbt21c3k5182641, ok tag # icw579, 854 p.2d 386 (okla.

we recognize that today's holding is in tension with a line of decisions in the commonwealth court, including decisions handed down after this court's non-binding explication in stewart.

we simply stated that "" '[i]n its discretion, a reviewing court ""may reduce the degree of an offense to a lesser[-]included offense when the evidence fails to prove the defendant guilty beyond a reasonable doubt of the greater offense.""

in its opinion in sanchez-gomez, the supreme court rejected the concept that the previously shackled defendants had shown a sufficient stake in the outcome to avoid mootness because they ""sought relief from the restraint policy not merely for themselves, but for all in-custody defendants in the district.""

we specifically overrule johnson to the extent it approves the use of this instruction in the trial courts.

the spouse to whom a liability is allocated is responsible for paying that debt.

(in re aurora p. (2015) 241 cal.app.4th 1142, 1154, fn. 7.)

we reject this per se rule as inconsistent with strickland's holding that "the performance inquiry must be whether counsel's assistance was reasonable considering all the circumstances.

to the extent of such inconsistency, we overrule those cases.

further, we reject use of the statutory definition of vessel in the lhwca as the basis for the definition of vessel under 905(b), as was done in lundy v. litton systems, inc., 624 f.2d 590 (5th cir. 1980), cert. denied, 450 u.s. 913, 101 s.ct. 1353, 67 l.ed.2d 337 (1981), and overrule the holding in trussell v. litton systems, inc., 753 f.2d 366, 367 (5th cir. 1985), that a hull under construction, located "on a building platform in a building-way within the shipyard," and not on navigable waters, was a vessel for 905(b) purposes.

the holding of the court in the goldman case was error and it is now specifically overruled.

hi-tech points to fawcett v. grosu, 498 s.w.3d 650, and sloat v. rathburn, 513 s.w.3d 500 (tex. app.austin 2015, pet. dism'd), in support of this argument.

therefore, the position previously stated in watson v. state, supra, and robinson v. state, supra, is hereby, overruled.

[4] balser remained in jail after this arrest, but the task force continued its investigation.

we overrule appellants' first point of error to the extent appellants challenge the legal sufficiency of the evidence of causation.

martin v. twp enterprises inc., 227 md. app. 33, 49 (2016) (quoting baltimore luggage co. v. holtzman, 80 md. app. 282, 290 (1989).

we overrule this point.

norquay, 905 f.2d at 1158-59; see also 18 u.s.c. 1153(b).

in so doing, we realize that we are departing from hinckle v. state, del

therefore, we overrule all cases contrary to this holding.

2003), to the extent that it indicates that such a hearing is unnecessary.

we quash carter, approve nathan, young, austin, and sneed, and disapprove the reasoning in bover to the extent it is inconsistent with this opinion.

state v. saldierna, 242 n.c. app. 347, 353, 775 s.e.2d 326, 330 (2015) (saldierna i). in addition, defendant contended that the trial court had failed to ""appropriately consider his juvenile status in determining that his waiver of rights was knowing and voluntary.""

the second cause of action asserted that the liquidated damages clause of the leases was void as a penalty banned by civil code section 1671, or, in the alternative, should be construed as authorizing termination of the lease prior to its expiration.

e.g., united states v. iannone, 184 f.3d 214, 222 (3d cir. 1999).

see potter v. state dep't of human res., 511 so.2d 190, 192 (ala.civ.app.1986); see also c.l. v. d.h., 916 so.2d 622, 62526 (ala.civ.app.2005).

we therefore overrule clouthier to the extent that it identified a single deliberate indifference standard for all 1983 claims and to the extent that it required a plaintiff to prove an individual defendant's subjective intent to punish in the context of a pretrial detainee's failure-to-protect claim.

in which the court of appeals erroneously applied the reasoning of millette, incorrectly applying the three-year statute where a plaintiff sought to recover land he allegedly was fraudulently induced to convey.

it demonstrates a conscious desire to accomplish an unlawful act, denotes a lack of virtually all personal characteristics we deem important to law practice, threatens to bring significant misfortune on the unsuspecting client and severely impugns the integrity of the profession.""

to the extent that our ruling may conflict with state v. becker, 364 mo. 1079, 272 s.w.2d 283, that case should no longer be followed.

after the time period has expired, the trial court still has discretion to enlarge the time period if the moving party can demonstrate excusable neglect in addition to cause.

see ennis v. state, 122 nev. 694, 706, 137 p.3d 1095, 1103 (2006), the district court therefore did not err in denying this claim.

accordingly, and to the extent it differs from the holding herein, duncan v. beck is overruled.

based on our holding today, we disapprove the contrary holding in texas department of public safety v. levinson.

we now over-rule barnes, french, and tucker to the extent that they conflict with the requirements and provisions of the mississippi rules of civil procedure and subsequent decisions of this court.

note: martin v. szeto is the current case, therefore not overruled.

we announced a clear rule in kloeckner : ""[m]ixed cases shall be filed in district court.""

as the united states supreme court has observed, the crawford rule is flatly inconsistent with the prior governing precedent, roberts, which crawford overruled.

to the extent it is inconsistent with this opinion, the decision in jacquin-florida distilling corp. v. department of business regulation, 356 so.2d 340 (fla. 1st dca 1978), is disapproved.

a court of equity can refuse to require removal of an encroachment where ""the cost of removal by the defendant[s] would be greatly disproportionate to the injury to the plaintiff from [the] continuation"" of the encroachment.

caselaw which has expanded that definition to include "substantial protections" to which the defendant would have otherwise been entitled under the law as it existed at the time of commission of the offense was overruled.

14 after darby was convicted, he filed a postconviction motion arguing that his constitutional right to self-representation was violated because he had invoked his right during this exchange with the trial court.

it necessarily follows that our holding in the flye case on the point now under consideration was incorrect, and we now hereby recede therefrom.

the defendant did not testify at trial, but his report of the alleged assault to the police was put in evidence through the police officer and the recordings of his two 911 telephone calls.

434 n.w.2d at 116 n.2 (marshall, j., dissenting).

although the factual scenario set forth in bridgewater is similar to the present case, because the rooker-feldman analysis in bridgewater is drawn from moccio v. new york state office of court administration, 95 f.3d 195, 198 (2d cir. 1996), which was overruled by the supreme court in exxon mobil corp. v. saudi basic indus. corp., 544 u.s. 280, 284, 125 s.ct. 1517, 161 l.ed.2d 454 (2005), it no longer reflects the law of this circuit.

to the extent that our prior holding in aetna is in conflict herewith, the same is hereby expressly overruled.

after the adoption of a historic preservation plan for any historic district, ""all governmental agencies shall be guided by and give due consideration to the plan in any official acts affecting the area.""

in people v. ramirez, supra, 34 cal.3d 541, the supreme court disapproved people v. marquez, supra, 237 cal.app.2d 627, which had validated a good faith arrest made on a recalled warrant, and disapproved cases relying on marquez.

to the extent that tendai and mendelsohn suggest otherwise as regards the standard of review, they are overruled.

however, farley was overruled by ex parte airhart, 477 so.2d 979 (ala. 1985), in which the alabama supreme court held that there was a fatal variance between an indictment charging theft of currency and proof of the theft of a check.

for the reasons expressed, we approve the decision in the instant case and disapprove the decision of the third district court of appeal in fernandez.