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.

If you would like to receive a daily e-mail with same-day case updates, please join our Subscribers-Only discussion list.  Not a subscriber?  Join today!

June 23rd - 25th, 2008

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

TOPICS:
- Statute of limitations / Postrelease Control / Sentencing
- Written-Oral Lease Agreement / Damages / Statute of limitations
- Foreclosure / Appeal Magistrate's findings / Failure to object
- Allied offenses of similar import
- sentencing
- Evidence / Insufficient - Against Manifest weight
- Post-release-control
- Medical benefits coverage
- Food and Drug Administration / Abortion via oral ingestion
- Equal Pay Act / Civil Rights Act of 1964
- Americans with Disabilities Act
- United States Sentencing Guidelines
- Jury Instruction language / Evidence / Confrontation Clause / Sentencing
- Standard of review / Parsons’s claims under 42 U.S.C. § 1983 / State-law claims
 

Ohio Supreme Court

 

 
No Opinions.
 

First District Court of Appeals

[Search Other Ohio Districts]
 

*** Judgment Entries ***
 
State of Ohio vs. Dennis A. Couch (June 25, 2008)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-070001_06252008.pdf
-  Couch appeals from the convictions and the sentences imposed by the trial court after it accepted his pleas of no contest to a five-count indictment alleging that, in July 1992, Couch had kidnapped a 17-year-old girl at gunpoint and then brutally raped her. Couch contends that (1) the trial court was barred by the statute of limitations, (2) the aggregate minimum term of imprisonment imposed*53 years*violated former R.C. 2929.41(E), (3) the trial court erred in imposing postrelease control as part of his sentence, (4) he was prejudiced by the state*s delay in commencing the prosecution after learning from the CODIS match that he was the perpetrator of the offenses, and (5) that his trial counsel was ineffective for failing to raise this issue in the trial court. Judgment AFFIRMED except Couch is not subject to postrelease control upon the completion of his terms of imprisonment.
 
SBG Properties, Ltd., vs. Eleanor Lachman dba Cincinnati Dance, Inc. (June 25, 2008)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-070215_06252008.pdf
-  SBG filed a forcible-entry-and-detainer action and sued for monetary damages. Following a jury trial, Lachman was evicted and SBG was awarded $214,641.03 in damages.  Lachman contends that the trial court (1) erred by denying her motion for a directed verdict, (2) failed to “limit [SBG’s] eviction [action] to two years from the date the cause of action accrued”, (3) erred in failing to limit SBG’s claim for monetary damages on an oral contract to six years, and (4) by allowing SBG to amend its complaint to reflect that there was a written lease agreement. Judgment AFFIRMED.
 
William James Forte vs. Franklin Credit Management (June 25, 2008)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-070292_06252008.pdf
-  Gloria and William James Forte purchased a house. Both Fortes signed the mortgage; only William signed the promissory note. William defaulted on the promissory note; Franklin sued the Fortes for foreclosure. Franklin moved for summary judgment and the Fortes opposed the motion. “[I]f a party fails to object to a magistrate's finding or conclusion, that party waives the right to challenge the finding or conclusion on appeal.” Judgment AFFIRMED.
 
State of Ohio vs. Rubin Garrett (June 25, 2008)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-070618_06252008.pdf
-  Garrett was convicted of possession of 4.84 grams of crack cocaine and of trafficking in this same substance, in violation of R.C. 2925.11(A) and 2925.03(A)(2), respectively. Garrett claims (1) that the trial court erred under State v. Cabrales when it failed to merge one of his possession convictions with his trafficking conviction, and (2) that the court’s sentencing entry mistakenly ordered him to pay court costs, even though the court had stated that costs were to be remitted. Judgment VACATED and REMANDED.
 
State of Ohio vs. Anthony Springer (June 25, 2008)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-070683_06252008.pdf
-  Springer was charged with three counts of trafficking in cocaine, one count of trafficking in cocaine with a firearm specification, and one count of possessing cocaine with a firearm specification. Springer made a Crim.R. 29 motion for acquittal on the firearm specifications. The trial court overruled the motion and found Springer guilty of all charges. The court merged the gun specifications and imposed a one-year mandatory sentence. Springer was sentenced to six months’ concurrent incarceration on each count, for an aggregate sentence of 18 months. Springer’s three assignments of error allege that the trial court erred in overruling his Crim.R. 29 motion for acquittal on the firearms specifications, and that his convictions for the firearm specifications were based upon insufficient evidence and were against the manifest weight of the evidence. The sentence imposed on count four for trafficking in cocaine and the sentence imposed on count five for possessing cocaine are VACATED, and this case is REMANDED for resentencing so that only one sentence is imposed for counts four and five.
 
State of Ohio vs. Damian White (June 25, 2008)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-070688_06252008.pdf
-  White appeals his convictions for carrying a concealed weapon and trafficking in marijuana. The trial court found White guilty of carrying a concealed weapon and trafficking in marijuana with a gun specification. White asserts that his convictions were based on insufficient evidence and were against the manifest weight of the evidence. Judgment AFFIRMED.
 
State of Ohio vs. Chuck Helton (June 25, 2008)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-070690_06252008.pdf
-  Helton was indicted for three counts of rape and three counts of illegal use of a minor in nudity-oriented material. Helton was sentenced to an agreed aggregate sentence of 11 years’ incarceration. The sentencing entry did not include the mandatory post-release-control language. The trial court ordered that Helton be returned to the court for resentencing. The new sentencing entry included post-release-control language. Helton has appealed. Judgment AFFIRMED.
 
State of Ohio vs. James Scott (June 25, 2008)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-070701_06252008.pdf
-  Scott appeals from the trial court’s order revoking his community control and sentencing him to two years’ imprisonment. scott argues that he was deprived of his right to counsel because he was not represented by counsel at the probable-cause hearing and that the trial court abused its discretion when it revoked his community control. Judgment AFFIRMED.
 
State of Ohio vs. Todd Stowers (June 25, 2008)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-070834_06252008.pdf
-  Stowers was required to periodically verify his address because of a conviction for attempted rape. He now appeals the judgment convicting him of failing to verify his address under R.C. 2950.06, a felony of the third degree. Stowers contends that the conviction was based on insufficient evidence and was against the manifest weight of the evidence. Judgment AFFIRMED.
   

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

 

LoCoco v. Med Sav Ins Co. (June 23, 2008)(Appeal from S.D. OH)
-  http://www.ca6.uscourts.gov/opinions.pdf/08a0215p-06.pdf
-  Plaintiff Linda LoCoco appeals the grant of summary judgment in favor of defendant Medical Savings Insurance Co. in this suit over medical benefits coverage. Shortly before her husband’s health insurance coverage from Medical Savings became effective, he was treated for a respiratory ailment that was later diagnosed as lung cancer. Medical Savings denied coverage for the cancer for the first year of the policy, concluding that the disease was a “preexisting condition.” Medical Savings later cancelled subsequent coverage for failure to pay premiums. Plaintiff then brought suit, claiming that the denial was improper because the cancer was not diagnosed until after the policy took effect and that the cancellation was ineffective for lack of notice. Because the terms of the policy provided both for the denial of benefits and the automatic termination of coverage under these circumstances, we affirm the grant of summary judgment.
 
Planned Parenthood v. Taft AND Planned Parenthood v. Strickland (June 23, 2008)(Appeal from S.D. OH)
-  http://www.ca6.uscourts.gov/opinions.pdf/08a0216p-06.pdf
-  On remand from this court’s decision in Planned Parenthood v. Taft, 444 F.3d 502 (6th Cir. 2006), the district court permanently enjoined the enforcement of Ohio Revised Code (“O.R.C.”) § 2919.123 on the basis that it is unconstitutionally vague. The defendants-appellants, Interim Ohio Attorney General, Nancy H. Rogers, and Hamilton County, Ohio, Prosecuting Attorney, Joseph T. Deters, as representative for a class of all Ohio county prosecutors (collectively referred to in this order as the “State”), appealed.1 On appeal, both the State and Planned Parenthood have presented this court with contrary, yet plausible, interpretations of O.R.C. § 2919.123 that they respectively believe would save the statute from unconstitutionality. Because neither side addressed the issue of certification in their briefs, we instructed them to discuss at oral argument the propriety of certifying the question of O.R.C. § 2919.123’s scope and meaning to the Supreme Court of Ohio. When asked about certification at oral argument, both Planned Parenthood and the State encouraged this court to speculate on how the Supreme Court of Ohio would interpret the statute as opposed to seeking an authoritative interpretation from the Ohio high court via certification. In our opinion, however, the interests of judicial federalism and comity strongly counsel in favor of providing the Supreme Court of Ohio with the opportunity to interpret O.R.C. § 2919.123. Accordingly, we sua sponte CERTIFY the questions set forth in § II, B of this order to the Supreme Court of Ohio pursuant to Rule XVIII of the Rules of Practice of the Supreme Court of Ohio. See generally Elkins v. Moreno, 435 U.S. 647, 662 (1978) (certifying, sua sponte, a question of state law to the Maryland Court of Appeals).
 
Niswander v. Cincinnati Ins Co (June 24, 2008)(Appeal from N.D. OH)
-  http://www.ca6.uscourts.gov/opinions.pdf/08a0221p-06.pdf
-  This case requires us to address the scope of protection that should be afforded to employees who disseminate confidential documents in violation of their employer’s privacy policy in the context of employment-related litigation. In December of 2005, Kathleen Niswander’s employment with The Cincinnati Insurance Company (CIC) was terminated after CIC learned that Niswander had delivered confidential, proprietary documents to her lawyers in a class-action lawsuit against CIC. She was fired for breaching the company’s Privacy Policy and Code of Conduct. This caused Niswander to file a separate lawsuit against CIC, alleging retaliation under the Equal Pay Act (EPA) and Title VII of the Civil Rights Act of 1964 (Title VII). The parties filed cross-motions for summary judgment, after which the district court granted CIC’s motion. Niswander now appeals from that decision, arguing that because she delivered the documents in question at the request of her attorneys in the class-action lawsuit, her actions were protected activity for which she could not be fired under the EPA and Title VII. For the reasons set forth below, we AFFIRM the judgment of the district court.
 

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

 

Thornton v. Fed Express Corp (June 24, 2008)(Appeal from W.D. TN)
-  http://www.ca6.uscourts.gov/opinions.pdf/08a0217p-06.pdf
-  Plaintiff-appellant Deborah Thornton is a former employee of Federal Express Corporation (“FedEx”). She was discharged on August 24, 2004, when, after a 16- month leave of absence, she did not return to work, despite being notified of return-to-work opportunities. Plaintiff had taken the leave of absence due to stress stemming from sexual harassment by her immediate supervisor, David Bragorgos. Plaintiff did not pursue the return-towork opportunities because she continued to receive treatment for panic disorder and fibromyalgia from health care providers who she says had not released her to return to work. Plaintiff commenced this action in the Western District of Tennessee on April 1, 2005, charging FedEx with sex discrimination and retaliation, in violation of federal and state civil rights laws, and with discrimination based on her disability, in violation of the Americans with Disabilities Act. Defendant FedEx’s motion for summary judgment was granted by the district court in a 19- page opinion and order dated January 22, 2007. Proceeding pro se, plaintiff appeals from the district court’s judgment, contending the court failed to view the record evidence in the light most favorable to her. For the reasons that follow, we affirm.
 
USA v. Hall (June 24, 2008)(Appeal from E.D. MI)
-  http://www.ca6.uscourts.gov/opinions.pdf/08a0218p-06.pdf
-  Frank Henry Hall pled guilty to being a felon in possession of a firearm. In his plea agreement, Hall reserved the right to contest his criminal history category under the United States Sentencing Guidelines (U.S.S.G.). He subsequently filed a sentencing memorandum objecting to the addition of one criminal history point for each of two prior misdemeanor convictions. The district court, however, determined that Hall’s prior misdemeanor convictions should be counted under U.S.S.G. § 4A1.2(c)(1) because each sentence was for a term of imprisonment of at least 30 days. Hall now renews his argument that his two prior misdemeanor offenses should not have been counted because in both instances he was given full credit for time served on earlier unrelated offenses and, therefore, he did not actually serve any time in prison for the misdemeanors in question. For the reasons set forth below, we REVERSE the judgment of the district court and REMAND the case for resentencing consistent with this opinion.
 
USA v. McGee (June 24, 2008)(Appeal from w.D. MI)
-  http://www.ca6.uscourts.gov/opinions.pdf/08a0219p-06.pdf
-  Defendant-appellant Jameel McGee (“McGee”) appeals his conviction and sentence for possession with intent to distribute cocaine base, arguing that: 1) because his indictment contained no reference to aiding and abetting, the government should not have been permitted to argue it as an alternative theory of criminal liability; 2) the trial evidence was insufficient to sustain his conviction, entitling him to a judgment of acquittal under Rule 29(c)(1) of the Federal Rules of Criminal Procedure; 3) trial testimony containing statements by a confidential informant was admitted against him in violation of his confrontation clause rights; and 4) his sentence is unreasonable. For the reasons that follow, we affirm McGee’s conviction and sentence.
 
Justin Parsons v. City of Pontiac (June 24, 2008)(Appeal from E.D. MI)
-  http://www.ca6.uscourts.gov/opinions.pdf/08a0220p-06.pdf
-  Justin Parsons was arrested for the nonfatal shooting of Arthur Frantz, a firefighter with the Pontiac Fire Department. Parsons was a former firefighter who was discharged as a probationary employee of the Fire Department a month and a half before the shooting. Following his arrest, Parsons was detained for approximately two days before he was released. No charges have ever been filed against him in regard to the shooting. Parsons sued the City of Pontiac and a number of city police officers pursuant to 42 U.S.C. § 1983 and Michigan state law. Specifically, Parsons alleges that his constitutional rights were violated because he was arrested and detained without probable cause. The district court granted summary judgment in favor of the defendants. For the reasons set forth below, we REVERSE the judgment of the district court and REMAND the case for further proceedings consistent with this opinion.