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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May 28th & 29th, 2009

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

TOPICS:
- Writ of procedendo
- Attorney Misconduct
- writ of habeas corpus / Validity of an indictment
- Civil Miscellaneous / Wrongful termination
- Drugs / Sentencing / Search and Seizure / Indictment / Complaint
- Theft / Receiving stolen property / Evidence
- Insurance / Unjust enrichment
- Bankruptcy / Abandoned Stock
- Irrevocable family trusts / Breach of contract / Diversity jurisdiction
- Arrest / Excessive force / Qualified immunity / Assault and Battery
- Separation of church and state / Constitution / Establishment Clause
- Collective bargaining agreement / Fringe benefits
- Sentencing Guidelines Range / Abuse of discretion
- Sentencing / Correct Amendments
 

Ohio Supreme Court

 

State ex rel. Sevayega v. McMonagle (Slip Opinion)(2009-Ohio-2367)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2009/2009-ohio-2367.pdf
-  Appeal from dismissal of a petition for a writ of procedendo - Procedendo not available to compel performance of a duty already performed - Judgment affirmed.

Toledo Bar Assn. v. Baker (Slip Opinion)(2009-Ohio-2371)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2009/2009-ohio-2371.pdf
-  Attorneys - Misconduct - Multiple Disciplinary Rule violations, including neglecting entrusted legal matters, conduct involving dishonesty, fraud, deceit, or misrepresentation, and failing to cooperate in a disciplinary investigation - Indefinite suspension.

Akron Bar Assn. v. McNerney (Slip Opinion)(2009-Ohio-2374)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2009/2009-ohio-2374.pdf
-  Attorney misconduct, including failing to preserve the identity of clients’ funds and failing to keep complete records of client trust account - Two-year suspension, with one year stayed on conditions.

Junius v. Eberlin (Slip Opinion)(2009-Ohio-2383)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2009/2009-ohio-2383.pdf
-  Appeal from dismissal of a petition for a writ of habeas corpus - Habeas corpus not available to remedy claim concerning validity of an indictment - Judgment affirmed.
 

First District Court of Appeals

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Brennan Dean vs. Consolidated Equities Realty #3, LLC (May 29, 2009)(2009-Ohio-2480)
-  http://www.sconet.state.oh.us/rod/docs/pdf/1/2009/2009-ohio-2480.pdf
-  The trial court properly granted summary judgment to the defendant on the plaintiff’s wrongful-termination claim: the credit fraud allegedly committed by the defendant was not contrary to a clear public policy sufficient to warrant preclusion of the at-will employment doctrine.

State v. Jennings (May 29, 2009)(2009-Ohio-2481)
-  http://www.sconet.state.oh.us/rod/docs/pdf/1/2009/2009-ohio-2481.pdf
-  Convictions for trafficking in cocaine and possession of cocaine were not based upon insufficient evidence or against the weight of the evidence simply because they were based, in part, upon the testimony of a paid informant and a codefendant. An indictment that alleges that a defendant has trafficked in cocaine in violation of either R.C. 2925.03(C)(4)(a) or R.C. 2925.03(C)(4)(b) need not specify if the particular cocaine is either “cocaine” or ”crack cocaine” or some other “compound, mixture, preparation, or substance containing cocaine”: An indictment may be in the words of the statute, and the words of R.C. 2925.03(C)(4)(a) and (b) establish that trafficking in any of those substances is “trafficking in cocaine”; but the same is not true in cases involving R.C. 2925.03(C)(4)(c) through (g), where the distinction between “crack cocaine” and “cocaine that is not crack cocaine” has meaning. Sentences are proper when they are within the appropriate statutory ranges, and there is no showing that the trial court has abused its discretion in imposing them. The probable cause supporting a search warrant had not “grown stale” when the suspect was seen engaged in drug trafficking within 72 hours of the warrant’s issuance, and when the warrant was executed within 48 hours thereafter.

State v. Griffin (May 29, 2009)(2009-Ohio-2482)
-  http://www.sconet.state.oh.us/rod/docs/pdf/1/2009/2009-ohio-2482.pdf
-  The trial court did not err in finding the defendant guilty of receiving stolen property, where the defendant had offered to sell a GPS device hours after it had been stolen, and where he had hidden the device in a car that contained numerous other stolen items. The trial court erred in convicting the defendant of receiving stolen property as a felony of the fifth degree, where the state failed to produce evidence that the fair market value of the GPS device was $500 or more under R.C. 2913.61(D)(3) and instead produced evidence only of its replacement value.
 

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

 

William Wuliger v. Manufacturers Life Insurance Co (May 28, 2009)(Appeal from N.D. OH)
-  http://www.ca6.uscourts.gov/opinions.pdf/09a0187p-06.pdf
-  Plaintiff William Wuliger (the “Receiver”) filed this diversity suit against Defendant Manufacturers Life Insurance Company (USA) (“MLIC”) seeking rescission of three insurance policies and the return of premiums paid on them after they were fraudulently procured for the benefit of a viatical investment company in receivership. MLIC now appeals the district court’s order granting summary judgment to the Receiver and denying MLIC’s motion for summary judgment. For the reasons that follow, we REVERSE the district court’s order and REMAND with instructions to grant summary judgment dismissing the action against MLIC.

W. Stark v. Robert Moran (May 28, 2009)(Appeal from N.D. OH)
-  http://www.ca6.uscourts.gov/opinions.pdf/09a0189p-06.pdf
-  Shares owned by a bankrupt party amounting to a one third interest in a closely held corporation-shares that the debtor had not originally listed in the bankruptcy petition-subsequently increased in value. The debtor and the bankruptcy trustee agreed that if the debtor paid to the bankruptcy estate an amount sufficient to cover all the bankrupt’s debts for which creditors had filed proofs of claim, the trustee would seek bankruptcy court approval to treat the stock as “abandoned” nunc pro tunc to the time of bankruptcy filing, thereby leaving the stock in the hands of the debtor. The bankruptcy court approved the arrangement and the nunc pro tunc abandonment in a decision affirmed by the Bankruptcy Appellate Panel. The owner of the remaining shares of the corporation-who sought to buy the debtor’s stock from the trustee-appeals, contending among other things that the deal did not comply with the statutory requirements for abandonment in 11 U.S.C. § 554. The appellant co-owner, however, lacks a legally protected interest in his ability to purchase the debtor’s interest in the property, and therefore lacks bankruptcy appellate standing. The legal bases for the co-owner’s challenges to the settlement and abandonment serve to protect the estate and its creditors, not those who want to purchase the property in question.
       

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

 

James Limbright v. George S. Hofmeister (May 28, 2009)(Appeal from E.D. MI)
-  http://www.ca6.uscourts.gov/opinions.pdf/09a0185p-06.pdf
-  In this case, we consider whether a district court may summarily enforce a settlement agreement that produced the dismissal of an earlier federal suit when the court has diversity jurisdiction over the breach-of-settlement-agreement controversy. We conclude that it may, and we therefore affirm the district court’s judgment.

James Grawey v. T. Drury (May 28, 2009)(Appeal from E.D. MI)
-  http://www.ca6.uscourts.gov/opinions.pdf/09a0186p-06.pdf
-  Appellants David Saad and Brad Davis appeal the District Court’s denial of their motions for summary judgment on qualified immunity grounds. The District Court denied summary judgment because there were triable issues of material fact. Viewing the facts in the light most favorable to the Appellees, Appellants used excessive force in violation of the Fourth Amendment when arresting Appellee. We therefore affirm.

American Atheists, Incorporate v. City of Detroit Downtown Devel (May 28, 2009)(Appeal from E.D. MI)
-  http://www.ca6.uscourts.gov/opinions.pdf/09a0188p-06.pdf
-  As part of its efforts to revitalize the local economy, the City of Detroit in the late 1990s built a new stadium, Comerica Park, for its professional baseball team (the Tigers) and a new stadium, Ford Field, for its football team (the Lions). In 2003, the City created a development program, empowered to reimburse up to 50% of the costs of refurbishing the exteriors of downtown buildings and parking lots. The program was limited to property in a discrete section of downtown Detroit but reached out to all property in that area, including property owned by religious organizations. Three churches participated in the program: a Methodist church, a Baptist church and an Episcopal church. Of the $11.5 million allocated for completed and authorized projects, 6.4% (or about $737,000) went to these churches. The question at hand is whether the Establishment Clause of the United States Constitution, or its counterpart in the Michigan Constitution, prohibits the City from including religious organizations in the program. The lead plaintiff, American Atheists, maintains that they do, and it filed this lawsuit to enjoin the agency from making any grants to religious entities. The district court rejected these arguments in large part, and we reject them in full.

Joint Administrative Committee v. Washington Group International  (May 29, 2009)(Appeal from E.D. MI)
-  http://www.ca6.uscourts.gov/opinions.pdf/09a0190p-06.pdf
-  When an employer signs a collective bargaining agreement, it assumes certain obligations to its employees. At issue in this case are the scope of obligations that a general contractor assumes in signing a national collective bargaining agreement that incorporates-in part-two local collective bargaining agreements designed to provide fringe benefits to independent contractors working on the general contractor’s projects.

USA v. Daniel Grams (May 29, 2009)(Appeal from W.D. MI)
-  http://www.ca6.uscourts.gov/opinions.pdf/09a0191p-06.pdf
-  Daniel Francis Grams pleaded guilty to robbing a credit union in Grand Rapids, Michigan, in violation of 18 U.S.C. § 2113(a). The district court sentenced Grams to a term of imprisonment of seventy-two months. On appeal, he contends that the district court abused its discretion in sentencing him. We agree-because the district court failed to explain adequately its reason for imposing the sentence, we vacate Grams’s sentence and remand for resentencing.

USA v. James Moore (May 29, 2009)(Appeal from W.D. KY)
-  http://www.ca6.uscourts.gov/opinions.pdf/09a0192p-06.pdf
-  James Terry Moore appeals his sentence, arguing that the district court sentenced him under the wrong statute and, therefore, the sentence imposed was improper. For the reasons that follow, we AFFIRM the district court.