Daily Case Update Archive

As a service to our members, we monitor opinions issued from the Ohio Supreme Court, the Ohio State First District Court of Appeals, and the United States Sixth Circuit Court of Appeals.  You can read the latest summaries or archived summaries from 2005 , 2006 , 2007 , 2008 , 2009 , 2010 , 2011.

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July 12th thru 14th, 2006

Ohio Supreme Court | Ohio First District | U.S. 6th Circuit - Ohio | U.S. 6th Circuit - Other States
 

TOPICS:
- Attorney Misconduct
- Right to jury
- Probate - Dormancy and revivor statutes - garnishment
- Criminal law * Search and seizure * Traffic stop
- Criminal law * Felonies * Sentencing
- Court Policy on Private Judging
- DUI - motion to suppress tests
- Manifest weight of the evidence
- Insurance - Uninsured-motorist statute
- Damages
- Real Property - Procedure/Rules
- Attorney Fees
- Contracts
- Civil Rights Act of 1964
- Sentencing Guidelines
- Grand Jury subpoena - privileged screen of documents
- Immigration - asylum - REAL ID Act
 

Ohio Supreme Court

 

Cleveland Bar Assn. v. McNally (July 12, 2006) (2006-Ohio-3258)
-  http://www.sconet.state.oh.us/rod/newpdf/0/2006/2006-ohio-3258.pdf
-  Attorneys at law * Misconduct * Conduct involving dishonesty, neglect of a legal matter, refusal to carry out a contract for employment, and failure to cooperate in the disciplinary investigation warrants an indefinite suspension from the practice of law.
 
Arrington v. DaimlerChrysler Corp. (July 12, 2006) (2006-Ohio-3257)
-  http://www.sconet.state.oh.us/rod/newpdf/0/2006/2006-ohio-3257.pdf
-  Right to jury * Statutory actions not existing at common law * Workers' compensation appeal pursuant to O.R.C. 4123.512 * Order for presentation of evidence by video recording upheld.
 
In re Estate of Mason (July 12, 2006) (2006-Ohio-3256)
-  http://www.sconet.state.oh.us/rod/newpdf/0/2006/2006-ohio-3256.pdf
-  Execution of judgments * Dormancy and revivor statutes * O.R.C. 2329.07 and 2325.15 * Once installment support order is reduced to lump-sum judgment, dormancy and revivor statutes apply * Legatees' interest in estate is equitable and therefore attachable only by creditor's bill until probate court makes an order of distribution or fiduciary has definite amount ready to distribute * Once probate court has made an order of distribution or a definite amount is ready to distribute, legatee's interest becomes legal interest subject to garnishment.
 
State v. Farris (July 12, 2006) (2006-Ohio-3255)
-  http://www.sconet.state.oh.us/rod/newpdf/0/2006/2006-ohio-3255.pdf
-  Criminal law * Search and seizure * Traffic stop * Incriminating statements made by defendant after Miranda warnings confirming statements made before warnings are inadmissible * Physical evidence seized as a result of inadmissible statements is also inadmissible * Odor of marijuana gave rise to probable cause for warrantless search of interior of vehicle but not its trunk.
 
In re Ohio Criminal Sentencing Statutes Cases (July 12, 2006) (2006-Ohio-3254)
-  http://www.sconet.state.oh.us/rod/newpdf/0/2006/2006-ohio-3254.pdf
-  Criminal law * Felonies * Sentencing * Cases accepted and disposed of on the authority of State v. Foster.
 
State ex rel. Russo v. McDonnell (July 12, 2006) (2006-Ohio-3259)
-  http://www.sconet.state.oh.us/rod/newpdf/0/2006/2006-ohio-3259.pdf
-   In matters referred to private judges pursuant to RC 2701.10 and Gov.Jud.R. 6, court in which action is pending is not required to provide retired judge with courtroom, staff, or equipment, but may do so if parties to the case assume responsibility for costs.  Plain language interpretation of statute indicates private judge is without authority to preside over jury trial and "try all issues on the action or proceeding, prepare relevant findings of fact & conclusions of law, and enter judgment in said action or proceeding in the same manner as if he were an active judge of the court.   Peremptory writ of prohibition to prevent compelling or facilitating jury trial granted, but denied with respect to use in non-jury trials of court facilities.
 

First District Court of Appeals

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*** Judgment Entries ***
City of  Cincinnati v. Ott (July 12, 2006)
-  http://www.hamilton-co.org/appealscourt/Decisions/C-050337.pdf
-  Plaintiff-appellee, the city of Cincinnati, appeals from the trial court's order granting the motion of defendant-appellee, Jason Ott, to suppress the results of breath-alcohol and field-sobriety tests related to the charges against him for operating a vehicle under the influence of alcohol in violation of O.R.C. 4511.19(A)(1)(a) and operating a vehicle with a prohibited concentration of alcohol in his breath in violation of O.R.C. 4511.19(A)(1)(d). Judgment AFFIRMED.
 
State v. Lindsey
-  http://www.hamilton-co.org/appealscourt/Decisions/C-050630.pdf
-  Lindsey appeals the trial court's judgment convicting him after a bench trial of trafficking, in violation of O.R.C. 2925.03(A)(2). Judgment AFFIRMED.
 
***Decisions***
Kelly v. Auto-Owners Insurance Co. (July 14, 2006) (2006-ohio-3599)
-  http://www.sconet.state.oh.us/rod/newpdf/1/2006/2006-ohio-3599.pdf
-  The uninsured-motorist statute, O.R.C. 3937.18, as amended in 2001, does not require insurers to offer UM coverage, and a policy offering UM coverage may include any terms and conditions precluding coverage, as long as these circumstances are specified in the policy. The UM statute does not prevent an insurer from eliminating uninsured-motorist's coverage when one spouse becomes legally liable to another for personal injury. Where a husband was severely injured when he was struck by an automobile operated by his wife, his injury was not compensable under the UM portion of his auto policy:  The wife's claim was excluded from coverage for bodily-injury liability due to an intrafamilial-tort exclusion, and the UM portion of the policy specifically excluded UM coverage "when the bodily injury was caused by an automobile operated by a person excluded from coverage for bodily injury liability under the policy." The trial court did not err in entering summary judgment in favor of an insurer on the issue of coverage, where the insured's injury was excluded under the unambiguous terms of the policy. Where an insurance claim was justifiably denied, that denial could not serve as the basis for a bad-faith claim against the insurer. Judgment AFFIRMED.
 
Whiteside, et al. v. Bennett, et al. (July 14, 2006) (2006-ohio-3600)
-  http://www.sconet.state.oh.us/rod/newpdf/1/2006/2006-ohio-3600.pdf
-  The trial court erred by denying plaintiff's motion for a new trial on the issue of damages for future pain and suffering, when the jury's award of no damages was against the manifest weight of the evidence:  Each expert witness, including the defendant's expert, testified that plaintiff, who had been injured in a car accident, would continue to suffer pain in the future, even though the pain could be managed by over-the-counter medication. Judgment REVERSED in part and cause REMANDED.
 
Standard Federal Bank v. Staff, et al. (July 14, 2006) (2006-ohio-3601)
-  http://www.sconet.state.oh.us/rod/newpdf/1/2006/2006-ohio-3601.pdf
-  The trial court did not err by granting summary judgment to the mortgagee in a foreclosure action:  When the debtor executed the mortgage, he concealed his bankruptcy proceedings in another state, and when his dower interest was abandoned by the bankruptcy estate, the property was properly treated as though no bankruptcy had been filed, and the dower interest in the property reverted to the debtor, who had held the interest prior to the bankruptcy proceedings.  See Brown v. O'Keefe (1937), 300 U.S. 598, 602, 57 S.Ct. 543.  When the debtor's dower interest was abandoned and properly treated as though no bankruptcy had been filed, the debtor's conveyance of that interest became effective with the closing of the bankruptcy case. The trial court did not abuse its discretion by granting the mortgagee's Civ.R. 60(B) motion to set aside a default judgment the debtor had obtained against the bankruptcy trustee for the debtor's dower rights:  The mortgagee was a proper post-judgment intervenor and could move to set aside the default judgment because the mortgagee (1) demonstrated a meritorious defense*its property interest in the unpaid mortgage; (2) was entitled to relief under Civ.R. 60(B)(5)*the catch-all provision that reflects the inherent power of a court to relieve a person from the unjust operation of a judgment; and (3) moved to set aside the default judgment in a reasonable time*only one month after the entry of the default judgment for the debtor.  Judgment AFFIRMED.
 
Thomas v. City of Cincinnati, et al. (July 14, 2006) (2006-ohio-3598)
-  http://www.sconet.state.oh.us/rod/newpdf/1/2006/2006-ohio-3598.pdf
-  The time requirements set forth in O.R.C. 2323.51(B)(1) are not jurisdictional:  Because the city did not raise the issue of whether the plaintiff's motion for attorney fees was timely filed, it waived the issue and could not raise it for the first time on appeal. An award of attorney fees was justified under O.R.C. 2323.51(A) and under a common-law bad-faith theory when the city continued to maintain a position it could not have reasonably and in good faith maintained under the language of the applicable collective-bargaining agreement and an agreement that the city had failed to disclose in a prior proceeding. A firefighter seeking to prevent a transfer of his position was a prevailing party in a previous appeal and was therefore entitled to an award of attorney fees under a common-law bad-faith theory, when he successfully maintained his position and obtained a complete victory, and when the only reason the court of appeals did not reverse the trial court's previous judgment was that the city had effectively made the issue moot by transferring the plaintiff back to the position he desired.   Judgment AFFIRMED.
 

U.S. Sixth Circuit Court of Appeals:  Ohio Cases

 

Preferred Cap Inc v. Assoc in Urology (July 12, 2006) (Appeal from N.D. Ohio)
-  http://www.ca6.uscourts.gov/opinions.pdf/06a0242p-06.pdf
-  Plaintiff, Preferred Capital, Inc., appeals the district court Order granting Defendant, Associates in Urology's Fed. R. Civ. P. 12(b)(2) motion to dismiss for lack of jurisdiction. The district court found that the forum selection clause in the contract between Defendant and Plaintiff, whose interest was assigned to Plaintiff by non-party NorVergence, was unenforceable for being unjust. For the reasons set forth below, we hold that the district court improperly found the forum selection clause to be invalid, and erred in granting Defendant's motion to dismiss. We therefore REVERSE the district court.
 
Randolph v. Youth Services (July 13, 2006) (Appeal from S.D. Ohio)
-  http://www.ca6.uscourts.gov/opinions.pdf/06a0243p-06.pdf
-  Plaintiff-appellant Donna Randolph filed a complaint in United States District Court for the Southern District of Ohio against the Ohio Department of Youth Services, asserting claims of sex discrimination, hostile-work-environment sexual harassment, and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. The district court granted the Ohio Department of Youth Services's motion for summary judgment in its entirety. Randolph now appeals. For the following reasons, we reverse the decision of the district court and remand the case for further proceedings.
 

U.S. Sixth Circuit Court of Appeals: Other States Cases

 

USA v. Galvan AND USA v. Johnson (July 13, 2006) (Appeal from E.D. Mich.)
-  http://www.ca6.uscourts.gov/opinions.pdf/06a0244p-06.pdf
-  Patrick Galvan and Charles Johnson pleaded guilty to conspiring to distribute cocaine. Both individuals attack the sentences that the district court imposed. Galvan argues that the district court miscalculated his criminal history and that the court determined his sentence under mandatory Sentencing Guidelines, and Johnson argues that the district court improperly enhanced his sentence. We vacate Galvan's sentence and remand for resentencing in accordance with Booker, and we affirm Johnson's sentence.
 
In re: Grand Jury Sb v. (July 13, 2006) (Appeal from E.D. Mich.)
-  http://www.ca6.uscourts.gov/opinions.pdf/06a0245p-06.pdf
-  These cases arise from events leading up to the 2003 bankruptcy filing of Venture Holdings LLC ("Venture"), a company once controlled by appellant Larry Winget. After Venture's new (post-filing) management conducted an internal investigation, the company filed suit against Winget for allegedly fraudulent conveyances of goods and services from Venture to other entities that Winget owned or controlled. Shortly thereafter, a federal grand jury issued two subpoenas duces tecum, filed under seal, to Venture. Winget filed a motion to intervene, and seven companies affiliated with Winget (the "Affiliated Companies") later joined this motion. The documents in question have not been examined by any of the parties, and they remain in locations under Venture's control. Winget and the Affiliated Companies demanded the right to conduct their own privilege review of the documents responsive to the subpoenas, as both the government and Venture are actually or possibly litigation opponents of Winget's or the Affiliated Companies'. The government opposed this motion, and asserted that any privilege review be conducted by its own "taint team." The district court granted Winget's and the Affiliated Companies' motions to intervene, but agreed with the government with respect to the "taint team" review procedure. The district court issued an alternative holding that Winget had also failed to meet the threshold requirement of showing any rights of privilege in the requested documents. For the reasons stated below, we reverse and remand.
 
Almuhtaseb v. Gonzales (July 13, 2006) (Board of Immigration Appeals)
-  http://www.ca6.uscourts.gov/opinions.pdf/06a0246p-06.pdf
-  Jihan Hatem Almuhtaseb ("Almuhtaseb") petitions this court for review of the denial of her request for asylum, or, in the alternative, withholding of removal, by the Board of Immigration Appeals ("BIA"). Almuhtaseb's petition allows us to consider for the first time the effect of § 106(a)(1)(A)(iii) of the REAL ID Act of 2005 ("REAL ID Act"), 8 U.S.C. § 1252(a)(2)(D), on our ability to review denials of asylum based on untimeliness. Because we are without jurisdiction to review the denial of Almuhtaseb's asylum application, we DISMISS that part of her petition, and because Almuhtaseb cannot meet the high bar set to qualify for withholding of removal, we AFFIRM the BIA's decision denying withholding of removal.