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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Dec. 29,  2008 - Jan. 2, 2009

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

TOPICS:
- Real Property Tax value / Uniform property taxation / Agricultural use
- Attorneys at law / Misconduct
- Personal income tax / Petition for reassessment
- Temporary custody / Filed within 30 days of the judgment
- Municipal courts / Court costs in criminal cases
- Petition for reassessment income tax / Jurisdictional
- Res Judicata / Estoppel / Insurance
- Real Property / Condominium declarations and bylaws
- Assault / Homicide / Procedure / Rules / ORC 2941.25
- DUI / Evidence / Insufficient
- Liable for statutory conversion / Prejudgment interest
- Endangering children R.C. 2919.22(A)
- Lemon law / Implied warranty / Attorney Fees
- Eminent Domain Action / Fair market property value
- Evidence / Hearsay / Insuffiecient / Manifest weight / Sentencing
- Employment / Sexual harassment / Breach implied Contract / Promissory estoppel
- Communications Decency Act / Breach of Contract / Limitation-of-liability
- Bankruptcy / Chapter 13 / Chapter 7 / 4-year period
- Class Action Fairness Act / Nuisance / Water Pollution
- Habeas petition / Effective assistance of counsel
- Subject matter jurisdiction / Diversity of citizenship
 

Ohio Supreme Court

 

Fife v. Greene Cty. Bd. of Revision (Slip Opinion)(Dec. 30, 2008)(2008-Ohio-6786)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2008/2008-ohio-6786.pdf
-  R.C. 5713.30 and 5713.31 - Current agricultural-use value -
Commercial timber production - Board of Tax Appeals decision affirmed.
 
Columbus Bar Assn. v. Dice (Slip Opinion)(Dec. 30, 2008)(2008-Ohio-6787)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2008/2008-ohio-6787.pdf
-  Attorneys at law - Misconduct - Conduct prejudicial to the
administration of justice - Conduct adversely reflecting on the lawyer's
fitness to practice law - Handling a legal matter without adequate
preparation - Neglect of an entrusted legal matter - Failing to seek the
lawful objectives of a client - Failure to cooperate in a disciplinary
investigation - Partially-stayed suspension.
 
Hafiz v. Levin (Slip Opinion)(Dec. 30, 2008)(2008-Ohio-6788)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2008/2008-ohio-6788.pdf
-  Personal income tax - Petition for reassessment - R.C. 5747.13(B) is
mandatory and jurisdictional, and failure to comply with 60-day filing
requirement leads to dismissal.
 
Cuyahoga Cty. Bar Assn. v. Veneziano (Slip Opinion)(Dec. 30,
2008)(2008-Ohio-6789)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2008/2008-ohio-6789.pdf
-  Attorneys at law - Misconduct - Conduct adversely reflecting on
fitness to practice law - Failure to withhold payroll taxes and to pay
personal income taxes - One-year stayed suspension.
 
In re H.F. (Slip Opinion)(Dec. 31, 2008)(2008-Ohio-6810)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2008/2008-ohio-6810.pdf
-  Juvenile court - Appeal - An appeal of a juvenile court's
adjudication order of abuse, dependency, or neglect and the award of
temporary custody pursuant to R.C. 2151.353(A)(2) must be filed within
30 days of the judgment entry pursuant to App.R. 4(A).
 
Middleburg Hts. v. Quinones (Slip Opinion)(Dec. 31, 2008)(2008-Ohio-6811)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2008/2008-ohio-6811.pdf
-  Municipal courts - Court costs in criminal cases - Local rules -
Authority to impose costs on a per charge, rather than on a per case,
basis - Cause remanded to trial court.
 
Wagenknecht v. Levin (Slip Opinion)(Dec. 31, 2008)(2008-Ohio-6812)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2008/2008-ohio-6812.pdf
-  R.C. 5747.10 - Petition for reassessment - Failure to make required
payment on the assessment - Board of Tax Appeals decision affirmed.
 

First District Court of Appeals

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*** Judgment Entries ***

Geiger v. Westfield Natl. Ins. Co. (Dec. 31, 2008)(2008-Ohio-6904)
-  http://www.sconet.state.oh.us/rod/docs/pdf/1/2008/2008-ohio-6904.pdf
-  The trial court erred in entering summary judgment on the basis of
res judicata where the same facts were not at issue in the first and
second lawsuits. Res judicata bars only those actions that are based
upon a claim arising out of the transaction or occurrence that was the
subject matter of a previous action. Where there is no "common nucleus
of operative facts" between an earlier and later lawsuit, res judicata
does not apply. [Grava v. Parkman Twp. 73 Ohio St.3d 379, 1995-Ohio-331,
653 N.E.2d 226, syllabus followed]. The trial court erred to the extent
that it entered summary judgment on the basis that plaintiffs had
released all claims against defendant because there was no release
language in any document.
 
Montgomery Towne Homeowners' Assn. v. Greene (Dec. 31, 2008)(2008-Ohio-6905)
-  http://www.sconet.state.oh.us/rod/docs/pdf/1/2008/2008-ohio-6905.pdf
-  Compliance with restrictions contained in condominium declarations
and bylaws is required under R.C. 5311.19 where the restrictions are
reasonable: Ohio courts have applied a three-part test to determine if a
condominium restriction is reasonable; under this test, a reviewing
court must determine (1) whether the decision or rule is arbitrary, (2)
whether the decision or rule has been applied in an even-handed or
discriminatory manner, and (3) whether the decision or rule was made in
good faith for the common welfare of the owners and occupants of the
condominium. Where a restriction contained in a condominium declaration
was in existence prior to the purchase of a condominium unit, the
reasonableness test has less relevance to appellate review. The trial
court erred by allowing unit owners in a condominium to install
glass-block windows in their basement, when the unit owners were aware
of the restriction in the condominium declaration prohibiting exterior
changes without the association's approval, and when they had been
denied permission to make the alteration and had nonetheless persisted
in installing the glass-block windows.
 
State v. Lanier (Dec. 31, 2008)(2008-Ohio-6906)
-  http://www.sconet.state.oh.us/rod/docs/pdf/1/2008/2008-ohio-6906.pdf
-  Tape recorded conversations between the defendant and his girlfriend
made while the defendant was incarcerated were not "statements" within
the meaning of Crim.R. 16 that the state was required to disclose. Even
if the state was required to disclose tape-recorded conversations
between the defendant and his girlfriend, the trial court did not abuse
its discretion in admitting the statements when nothing in the record
showed that the state willfully hid the recordings, the court continued
the trial to give defendant's counsel time to review the recordings, and
the court ordered the state to provide the relevant conversations in a
form that the defendant could more easily use. The evidence was
sufficient to support the defendant's convictions for attempted murder
under R.C. 2903.02(A) and 2923.02(A) and felonious assault under R.C.
2903.11(A)(1) and (A)(2) when the victim testified that the defendant
had earlier threatened to kill him and when the defendant shot at the
victim, hitting him, and then continued to shoot until the gun jammed.
Even after State v. Cabrales, 118 Ohio St.3d 54, 2008-Ohio-1625, 886
N.E.2d 181, courts must still apply a two-part test to determine if
offenses are allied offenses of similar import and the first step of the
test still requires an abstract comparison of the elements, using a
common-sense approach. Attempted murder under R.C. 2903.02(A) and R.C.
2923.02(A) and felonious assault under R.C. 2903.11(A)(2) are allied
offenses of similar import. Attempted murder under R.C. 2903.02(A) and
R.C. 2923.02(A) and felonious assault under R.C. 2903.11(A)(1) are not
allied offenses of similar import because attempted murder only requires
an attempt and the determining factor is the defendant's intent while
felonious assault requires a completed offense.
 
State of Ohio vs. Davy Jordan, III (Dec. 31, 2008)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-080274_12312008.pdf
-  Jordan was convicted of operating a motor vehicle while under the
influence of alcohol in violation of R.C. 4511.19(A)(1)(a). Jordan
alleges that his conviction was based upon insufficient evidence because
the state failed to prove that he had "operated" his vehicle within the
meaning of R.C. 4511.19(A)(1)(a) while under the influence of alcohol.
Judgment AFFIRMED.
 
1st National Restoration Contractors, Inc. vs. Bruce Cutler, et al. (Dec. 31, 2008)
- http://www.hamilton-co.org/appealscourt/docs/decisions/C-080232_12312008.pdf
-  Defendant-appellant, Union Savings Bank ("USB"), appeals a judgment
in favor of plaintiff-appellee, 1st National Restoration Contractors,
Inc., for statutory conversion and negligence, as well as an award of
prejudgment interest. USB contends that the trial court erred in (1)
finding USB liable for statutory conversion, (2) denying its motion for
leave to file a cross-claim against Cutler for fraud, and (3) granting
prejudgment interest. Judgment AFFIRMED.
 
State of Ohio vs. Marsene Smith (Dec. 31, 2008)
- http://www.hamilton-co.org/appealscourt/docs/decisions/C-080132_12312008.pdf
-  Smith was indicted for endangering children under R.C. 2919.22(A).
Smith filed a motion to dismiss the indictment. The trial court granted
Smith's motion and dismissed the indictment without prejudice. The state
argues that if a motion to dismiss requires the examination of evidence
beyond the face of the indictment, the issue must be presented in a
motion for a judgment of acquittal at the close of the state's case at
trial. We find merit in the state's argument, and we reverse the trial
court's judgment.
 
Frank Yantek vs. Coach Builders Limited, Inc., (Dec. 31, 2008)
- http://www.hamilton-co.org/appealscourt/docs/decisions/C-080112_12312008.pdf
-  Yantek filed suit for breach of warranty and "Lemon Law" violations.
Coach filed a counterclaim alleging that Yantek had improperly filed a
breach-of-warranty claim. The parties agreed to a jury trial before a
magistrate. The magistrate denied Coach's motion for a directed verdict.
Yantek's motion for a directed verdict on Coach's counterclaim was
granted. The jury found in favor of Yantek and awarded damages of
$12,817. The jury specifically found that Coach had breached an implied
warranty because the Eldorado was not fit for the ordinary purpose for
which it was intended at the time of sale. Coach's motions for judgment
notwithstanding the verdict and remittitur were denied. Yantek was
awarded $20,728.40 for attorney fees and costs. Coach alleges that the
jury's finding on interrogatory number two precluded Yantek from
recovering for breach of an implied warranty. Judgment AFFIRMED.
 
City of Cincinnati vs. Al Gammarino, Trustee, et al.
- http://www.hamilton-co.org/appealscourt/docs/decisions/C-080045_12312008.pdf
-  In this eminent-domain proceeding, the duty of the jury was to
determine the fair market value of the property that was being taken by
plaintiff-appellee, the city of Cincinnati. After both appraisers and
Gammarino had testified, the jury determined that the fair market value
of the property was $74,000. A final judgment was entered to that effect
on October 10, 2007. Gammarino then moved for dismissal of the action
due to a lack of subject-matter jurisdiction under Civ.R. 12(B)(1) or,
in the alternative, for a new trial under Civ.R. 59, both of which the
trial court denied. Gammarino contends that the trial court erred in
denying his motion for a new trial and by "excluding testimony regarding
an arms-length sale while allowing testimony of a non-arms length sale
as evidence of the value of the subject property." Judgment AFFIRMED.
 
State of Ohio vs. Garfield Howard (Dec. 31, 2008)
- http://www.hamilton-co.org/appealscourt/docs/decisions/C-070855_12312008.pdf
-  Following a jury trial, defendant-appellant, Garfield Howard, was
found guilty of two counts of murder under R.C. 2903.02(A) and (B) and
one count of having weapons under a disability under R.C. 2923.13(A)(3),
all with accompanying firearm specifications. The trial court sentenced
him to a total of 23 years' to life incarceration. We find no merit in
his seven assignments of error, and we affirm his convictions.
 
Laura Rector vs. Ethicon Endo-Surgery, Inc., et al. (Dec. 31, 2008)
- http://www.hamilton-co.org/appealscourt/docs/decisions/C-070619_12312008.pdf
-  Plaintiff-appellant Laura Rector, a former employee of
defendant-appellee Ethicon Endo-Surgery, Inc., appeals from the entry of
summary judgment in favor of Ethicon and its corporate parent, Johnson &
Johnson, Inc., on Rector?s claims of quid pro quo sexual harassment,
breach of an implied contract of employment, and promissory estoppel.
Judgment AFFIRMED.
          

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

 

John Doe v. SexSearch.com (Dec. 30, 2008) (Appeal from N.D. OH)
-  http://www.ca6.uscourts.gov/opinions.pdf/08a0462p-06.pdf
-  Pseudonymous plaintiff John Doe appeals the dismissal of his complaint against defendant, SexSearch.com ("SexSearch"), an online adult dating service that facilitates sexual encounters between its members. Doe used SexSearch to meet Jane Roe, who described herself as an eighteen-year-old female. The two met and had sexual relations. Roe, it turned out, was actually fourteen years old, and Doe was consequently arrested and charged with three counts of unlawful sexual conduct with a minor. In an unusual case of first impression, Doe then filed suit against SexSearch, alleging an array of violations under Ohio law, most of which are variations on the claim that SexSearch is at fault for Doe's sexual relationship with a minor and the harm that resulted from his arrest. The district court dismissed all fourteen causes of action under Fed. R. Civ. P. 12(b)(6) for failure to state a claim. In the alternative, the district court held that eight of the fourteen causes of action were also barred by the Communications Decency Act, 47 U.S.C. § 230. Because we agree with the district court that Doe's complaint failed to state a claim, we do not reach the question of whether the Communications Decency Act provides SexSearch with immunity from suit. We do not adopt the district court's discussion of the Act, which would read § 230 more broadly than any previous Court of Appeals decision has read it, potentially abrogating all state- or common-law causes of action brought against interactive Internet services. We do not have before us any issue concerning the criminal liability of the parties or the voidability of contracts for sexual services.
 

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

 

Krispen Carroll v. Jason Sanders (Dec. 29, 2008) (Appeal from E.D. MI)
-  http://www.ca6.uscourts.gov/opinions.pdf/08a0460p-06.pdf
-  Under the Bankruptcy Code, a chapter 13 debtor may not receive a discharge of his debts if he "received a discharge . . . in a case filed under chapter 7 . . . of this title during the 4-year period preceding" the filing of his chapter 13 petition. 11 U.S.C. § 1328(f). Jason Sanders filed this chapter 13 case more than four years after he filed an earlier chapter 7 case but less than four years after the bankruptcy court issued his chapter 7 discharge. The question is whether the four-year clock runs from the date he "filed" the chapter 7 petition or the date of the "discharge." Because we conclude that § 1328(f) sets a date-of-filing trigger and because Sanders filed his chapter 7 petition more than four years before initiating this chapter 13 proceeding, the Code permits the discharge.
 
Beth Freeman v. Blue Ridge Paper Products, Inc (Dec. 29, 2008) (Appeal from E.D. TN)
-  http://www.ca6.uscourts.gov/opinions.pdf/08a0461p-06.pdf
-  This class action for nuisance in the form of water pollution from a paper mill involves an effort by plaintiffs to avoid removal to federal court under the Class Action Fairness Act (CAFA) of 2005. Pub. L. No. 109-2, 119 Stat. 4 (codified in scattered sections of 28 U.S.C.). Plaintiffs divided their suit into five separate suits covering distinct six-month time periods, with plaintiffs' limiting the total damages for each suit to less than CAFA's $5 million threshold. See 28 U.S.C. § 1332(d)(2). The suits were filed in state court with identical parties and claims, except that the suits were for a series of different, sequential six-month periods. Each suit limited the total class damages to less than $4.9 million. The cases were removed to federal court by the defendant paper mill, but remanded by the district court. Because no colorable basis for dividing the claims has been identified by the plaintiffs other than to avoid the clear purpose of CAFA, remand was not proper.
 
Brown v. Smith (Dec. 31, 2008) (Appeal from E.D. MI)
-  http://www.ca6.uscourts.gov/opinions.pdf/08a0463p-06.pdf
-  Michael Brown, who was convicted of sexually molesting his teenage daughter, appeals the district court's denial of his habeas petition. He argues that his trial attorneys' failure to investigate and obtain records related to his daughter's counseling sessions-which records would have undermined her credibility-denied him the effective assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1994). The district court, applying the standard of review mandated under the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), agreed that Brown's counsels' performance was deficient, but held that Brown had not been prejudiced thereby. For the reasons that follow, we hold that AEDPA deference does not apply to this case, and, judging under a de novo standard, we conclude that Brown was indeed prejudiced by his trial counsels' deficient performance. We therefore reverse.
 
U.S. Motors v. General Motors Europe (Dec. 31, 2008) (Appeal from E.D. MI)
-  http://www.ca6.uscourts.gov/opinions.pdf/08a0464p-06.pdf
-  Appellants U.S. Motors, Praha Motors, LLC, Bratislava Motors, LLC, U.S. Motors (SK), and Joseph Levin (collectively, "Appellants") appeal from the decision of the United States District Court for the Eastern District of Michigan dismissing their complaint against appellee General Motors Europe ("G.M. Europe") for lack of subject matter jurisdiction. The district court held that under 28 U.S.C. § 1332(a)(2), diversity jurisdiction was lacking in a suit between domestic and foreign plaintiffs and a foreign defendant. We affirm.