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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Nov. 30th - Dec. 4th, 2009

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

TOPICS:
- Motion for reconsideration does not extend time to file appeal
- Jurisdiction / Writs of prohibition and mandamus
- Attorney misconduct
- Criminal law / Aggravated murder
- Public utilities / Taxation
- Written instruments / Compound or simple interest on default
- Frivolous appeal / Anders v. California
- DUI / Detention beyond the original traffic stop
- Civil forfeiture action / Subject-matter jurisdiction
- EVidence / Sufficiency / Crim. R. 29 motion / CMC 1501-1 criminal
prosecution
- Sentencing / Offenses of similar import
- Sexually-oriented offender / Senate Bill / Constitutionality
- Excessive sentence / Evidence / Motion in limine / Hearsay
- Appellate Review / Civil / Final and appealable order
- Autos / Criminal / Miranda / Evidence
- Evidence / Hearsay / Witness / Confrontation clause / Sentencing
- Writ of certiorari / Civil rights complaint
- Petition for rehearing denied
- Auto Accident / Negligent supervision and retention claim
- Bankruptcy / Chapter 7 Trustee / One-half interest mortgage
- Bankruptcy / Chapter 7 / Estate / Carve-Out Assets
 

Ohio Supreme Court

 

Osnaburg Twp. Zoning Inspector v. Eslich Environmental, Inc. (SlipOpinion)(Dec. 1, 2009)(2009-ohio-6163)
- http://www.sconet.state.oh.us/rod/docs/pdf/0/2009/2009-ohio-6163.pdf
- Appeal dismissed as improvidently accepted.

State ex rel. Martin v. Ohio Adult Parole Auth. (Slip Opinion)(Dec. 1, 2009)(2009-ohio-6164)
- http://www.sconet.state.oh.us/rod/docs/pdf/0/2009/2009-ohio-6164.pdf
- Failure to timely file appeal from court of appeals’ judgment — Motion
for reconsideration does not extend time to file appeal — Civ.R 60(B)
motion is not a substitute for a timely appeal — Judgment affirmed.

State ex rel. Carr v. McDonnell (Slip Opinion)(Dec. 1, 2009)(2009-ohio-6165)
- http://www.sconet.state.oh.us/rod/docs/pdf/0/2009/2009-ohio-6165.pdf
- Appeal from denial of a complaint for writs of prohibition and
mandamus — Judge does not patently and unambiguously lack jurisdiction
to proceed — Adequate remedy at law available — Judgment affirmed.

Geauga Cty. Bar Assn. v. Patterson (Slip Opinion)(Dec. 2, 2009)(2009-ohio-6166)
- http://www.sconet.state.oh.us/rod/docs/pdf/0/2009/2009-ohio-6166.pdf
- Attorneys at law — Misconduct — Multiple violations related to aiding
the unauthorized practice of law — 18-month suspension with conditional
six-month stay.

State v. Perez (Slip Opinion)(Dec. 2, 2009)(2009-ohio-6179)
- http://www.sconet.state.oh.us/rod/docs/pdf/0/2009/2009-ohio-6179.pdf
- Criminal law — Aggravated murder — Death penalty upheld.

Disciplinary Counsel v. Bursey (Slip Opinion)(Dec. 2, 2009)(2009-ohio-6180)
- http://www.sconet.state.oh.us/rod/docs/pdf/0/2009/2009-ohio-6180.pdf
- Attorney misconduct, including misappropriating money held in trust
for clients, forging clients’ signatures, and engaging in conduct
involving dishonesty, fraud, deceit, or misrepresentation — Disbarment.

State v. Jones (Slip Opinion)(Dec. 3, 2009)(2009-ohio-6188)
- http://www.sconet.state.oh.us/rod/docs/pdf/0/2009/2009-ohio-6188.pdf
- Appeal dismissed as improvidently accepted.

Ohio Bell Tel. Co. v. Levin (Slip Opinion)(Dec. 3, 2009)(2009-ohio-6189)
- http://www.sconet.state.oh.us/rod/docs/pdf/0/2009/2009-ohio-6189.pdf
- Public utilities — Taxation — R.C. 5727.11 — Notice of appeal to Board
of Tax Appeals — Notice of appeal must specify errors complained of in
tax commissioner’s final determination — General statements not
specifying exact nature of error complained of does not confer
jurisdiction on Board of Tax Appeals — Decision reversed.

Mayer v. Medancic (Slip Opinion)(Dec. 3, 2009)(2009-ohio-6190)
- http://www.sconet.state.oh.us/rod/docs/pdf/0/2009/2009-ohio-6190.pdf
- Written instruments — Compound or statute — Because R.C. 1343.02 does not provide for it, compound
interest is not available upon a default on a written instrument absent
agreement of the parties or another statutory provision expressly
authorizing it — The simple interest that accrues after a default on a
written instrument under R.C. 1343.02 accrues on both the principal and
the interest that was due and payable at the time of the default —
Certified question answered in the negative, judgment reversed, and
cause remanded.
 

First District Court of Appeals

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*** Judgment Entries ***

State of Ohio vs. Richard Jackson (Dec. 2, 2009)
- http://www.hamilton-co.org/appealscourt/docs/decisions/C-090198_12022009.pdf
- Jackson pleaded guilty to one count of possession of cocaine under
R.C. 2925.11(A). The trial court sentenced him to three years of
community control. After he violated the terms of his community control,
the trial court sentenced him to 14 months in prison. Subsequently, he
pleaded guilty to one count of trafficking in cocaine under R.C.
2925.03(A)(1). The trial court sentenced him to 10 months in prison, to
be served consecutively to the sentence in the previous case, for a
total of 24 Jackson’s counsel now asks this court to conduct an
independent review of the record to determine whether the proceedings
below were free from prejudicial error. Judgment AFFIRMED.

State of Ohio vs. David Fatherree (Dec. 2, 2009)
- http://www.hamilton-co.org/appealscourt/docs/decisions/C-090149_12022009.pdf
- Fatherree claims that the trial court improperly convicted him of
operating a motor vehicle while under the influence of alcohol.
Fatherree argues that the trooper unlawfully expanded the scope of the
detention beyond the original traffic stop. Judgment AFFIRMED.

State of Ohio vs. Kenneth Green (Dec. 2, 2009)
- http://www.hamilton-co.org/appealscourt/docs/decisions/C-090054_12022009.pdf
- Green pleaded guilty to one count of having weapons while under a
disability and one count of trafficking in marijuana. The trial court
sentenced him to serve a total of five years’ incarceration. In a
subsequent case, Green pleaded guilty to one count of burglary. The
trial court sentenced him to one year of imprisonment, to be served
concurrently with the sentence in the previous case. Green’s counsel now
asks this court to conduct an independent review of the record to
determine whether the proceedings below were free from prejudicial
error. Judgment AFFIRMED.

In Re: $795,852.14 U.S. Currency, et. al. (Dec. 2, 2009)
- http://www.hamilton-co.org/appealscourt/docs/decisions/C-090038_12022009.pdf
- The Sheriff of Hamilton County, Ohio appeals the trial court’s
judgment denying his motion to dismiss contempt proceedings in an
underlying civil forfeiture action. Because the trial court lacked
subject-matter jurisdiction to further consider the forfeiture action
when the parties had fully settled the case, we reverse the trial
court’s judgment.

State of Ohio vs. Thomas R. Ferris (Dec. 2, 2009)
- http://www.hamilton-co.org/appealscourt/docs/decisions/C-081286_12022009.pdf
- Ferris appeals from his conviction under Cincinnati Municipal Code2
601-99. Following a trial to the bench, the trial court found Ferris
guilty for violating Cincinnati Board of Health Regulations 00053-7(I)
and (J). He claims that his conviction was not supported by sufficient
evidence and that the trial court erred in overruling his Crim.R. 29
motion for an acquittal. He also argues that he should not have been
criminally prosecuted because the city has already pursued him civilly
for the same offense. Judgment AFFIRMED.

State of Ohio vs. Leslie M. Hickson (Dec. 2, 2009)
- http://www.hamilton-co.org/appealscourt/docs/decisions/C-081277_12022009.pdf
- Prior to trial, the prosecution moved that Hickson’s indictments be
consolidated. The trial court granted this motion, and Hickson’s trial
proceeded with both case numbers being tried simultaneously. The jury
found Hickson guilreceiving stolen property. The trial court sentenced Hickson to eight
years’ confinement on the burglary count and to one year for each of the
receiving-stolen-property counts. The sentences were consecutive for a
total of ten years’ confinement. Hickson claims that the trial court
erred when it allowed joinder of the two separate indictments and when
it sentenced him to consecutive one-year terms for the receiving-stolen-
property counts. Judgment AFFIRMED.

State of Ohio vs. Michael S. Wills (Dec. 2, 2009)
- http://www.hamilton-co.org/appealscourt/docs/decisions/C-081170_12022009.pdf
- Wills pleaded guilty to and was convicted of attempted unlawful sexual
conduct with a minor. He was designated a sexually-oriented offender.
Under former R.C. Chapter 2950, Wills was required to annually register
as a sexual offender for ten years. Wills received a notice from the
Ohio Attorney General stating that he had been reclassified under
Am.Sub.S.B. No. 10 (“Senate Bill 10”) as a Tier II sex offender and that
he was required to register with the local sheriff every 180 days for 25
years. Wills filed an R.C. 2950.031(E) petition to contest his
reclassification, challenging the constitutionality of Senate Bill 10.
After a hearing, the trial court overruled Wills’s constitutional
challenges to Senate Bill 10 and denied his petition. Judgment AFFIRMED.

State of Ohio vs. Ronnie Molen (Dec. 2, 2009)
- http://www.hamilton-co.org/appealscourt/docs/decisions/C-080969_12022009.pdf
- Molen appeals from the conviction entered and sentence imposed for the
felonious assault of his girlfriend, Mary Elizabeth Hatton. A jury also
returned a not-guilty verdict on a charge that Molen had kidnapped
Hatton. At the conclusion of the jury trial, the trial court imposed the
maximum eight-year prison term. Judgment AFFIRMED.

*** Opinions ***

Empower Aviation, LLC vs. Butler County Board of Commissioners, et al. (Dec. 4, 2009)
- http://www.sconet.state.oh.us/rod/docs/pdf/1/2009/2009-ohio-6331.pdf
- An order denying a preliminary injunction to a disappointed proposer
for a five-year service contract at a county airport is not a final and
appealable order under R.C. 2505.02(B)(4): the proposer will not be
denied a meaningful and effective remedy by deferring appellate review
until a final judgment is entered on the substantive claims for relief.

State of Ohio vs. Richard Rice (Dec. 4, 2009)
- http://www.sconet.state.oh.us/rod/docs/pdf/1/2009/2009-ohio-6332.pdf
- The trial court erred in determining that a defendant had been in
custody for Miranda purposes when the defendant had been placed in the
back seat of a police cruiser after being stopped for a traffic
violation: Two other people were in the stopped vehicle, and the officer
had a legitimate need for determining the source of an odor of alcohol
he had detected; the defendant was unhandcuffed and was subjected only
to routine, noncoercive questioning; and safety interests warranted
placing the defendant in the cruiser because the stop had occurred near
high-speed traffic on the side of an interstate highway. The trial court
erred in suppressing the results of three field-sobriety tests when the
state had presented evidence that the tests had been conducted in
substantial compliance with the pertinent National Highway Traffic and
Safety Administration regulations. The trial court erred in suppressing
the results of a defendant’s breath test based on the absence of a
procedural manual at the testing site, when the relevant Ohio
Administrative Code provision only required the presence of a
manufacturer’s operational manual for breath tests conducted on approved
testing machines. When a defendant’s breath test was conducted on a BAC
DataMaster cdm, the state demonstrated substantial compliance with Ohio
Adm.Code 3701-53-02(C), 3701-53-09(B), and 3701-53-07(C)(2) by
presenting evidence that the operator of the breath-test machine had
utilized a checklist for a BAC DataMaster, and that the operator had a
permit for, and had been trained on, a BAC DataMaster.
 

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

 

USA v. Martinez (Dec. 1, 2009)(Appeal from N.D. OH)
- http://www.ca6.uscourts.gov/opinions.pdf/09a0410p-06.pdf
- A jury convicted Defendant-Appellant Dr. Jorge A. Martinez of eight
counts of distribution of controlled substances, in violation of 21
U.S.C. § 841 (Counts 2-5, 7-8, and 10-11); fifteen counts of mail fraud,
in violation of 18 U.S.C. § 1341 (Counts 13-27); ten counts of wire
fraud, in violation of 18 U.S.C. § 1343 (Counts 28-37); twenty-one
counts of health care fraud, in violation of 18 U.S.C. § 1347 (Counts
38-58); and two counts of health care fraud resulting in the death of
patients, in violation of 18 U.S.C. § 1347 (Counts 59-60). Martinez’s
appeal is based on his claims that the evidence was insufficient to
support his conviction and that the district court’s admission of a
video portraying a non-witness physician performing medical procedures
constituted reversible error. Martinez also argues that his sentence is
both procedurally and substantively unreasonable. We AFFIRM.

Cohen v. Corr Corp of Amer (Dec. 1, 2009)(Appeal from N.D. OH)
- http://www.ca6.uscourts.gov/opinions.pdf/09a0411p-06.pdf
- On October 27, 2006, this court issued an opinion affirming the
district court’s judgment dismissing L.C. Cohen’s civil rights complaint
filed pursuant to 42 U.S.C. §§ 1983, 2000bb, and 2000cc-1. The district
court’s dismissal, and our affirmance, was based on Cohen’s failure to
allege exhaustion of his available administrative remedies prior to
filing his complaint. Our decision was in accordance with the law of
this circuit at that time. Following our decision, Cohen filed a
petition for a writ of certiorari with the United States Supreme Court.
Following our decision, Cohen filed a petition for a writ of certiorari
with the United States Supreme Court. On November 6, 2007, the Supreme
Court granted certiorari, vacated the decision of this panel, and
remanded the case to this court for further consideration in light of
Jones v. Bock, 549 U.S. 199, 127 S. Ct. 910 (2007). As our decision and
the judgment of the district court was based on the precedents of this
court that have been overruled in Jones, we therefore vacate our prior
decision, reverse the district court’s judgment, and remand the case to
the district court for further proceedings.

Richard Cooey, II, Kenneth Biros v. Ted Strickland (Dec. 4, 2009)(Appeal
from S.D. OH)
- http://www.ca6.uscourts.gov/opinions.pdf/09a0412p-06.pdf
- The court having received a petition for rehearing en banc, and the
petition having been circulated not only to the original panel members
but also to all other active1 judges of this court, and less than a
majority of the judges having favored the suggestion, the petition for
rehearing has been referred to the original panel. The panel has further
reviewed the petition for rehearing and concludes that the issues raised
in the petition were fully considered upon the original submission and
decision of the case. Accordingly, the petition is denied.
 

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

 

Angela Dortch v. Loren Fowler (Nov. 30, 2009)(Appeal from W.D. KY)
- http://www.ca6.uscourts.gov/opinions.pdf/09a0409p-06.pdf
- This case arises out of a traffic accident involving a vehicle driven
by Angela Dortch and a Con-Way Transportation Services, Inc.
tractor-trailer driven by Loren Fowler. The accident left Fowler unhurt,
but Dortch suffered permanently disabling injuries that caused her to
lose all memory of the collision. Dortch alleges that Fowler’s
tractor-trailer was in her lane when the accident occurred, and that
Con-Way had continued to employ Fowler despite his poor driving record.
She brought suit against both Fowler and Con-Way, alleging negligent
causation on the part of Fowler (attributable to Con-Way under the
doctrine of respondeat superior) and negligent supervision and retention
on the part of Con-Way. The district court gfavor of Con-Way on the
negligent-supervision-and-retention claim, and a jury found for Fowler
(and thus Con-Way) on the underlying negligence claim regarding the
cause of the accident. For the reasons set forth below, we AFFIRM the
 judgment of the district court.

In re: Shirley A. Ingersoll v. (Dec. 4, 2009)(Appeal from U.S. Bankruptcy Court)
- http://www.ca6.uscourts.gov/opinions.pdf/09b0013p-06.pdf
- This is an appeal of the bankruptcy court’s grant of summary judgment
in favor of Defendant - Appellee, National City Bank (“NCB”), in an
adversary proceeding commenced by William Todd Drown, Chapter 7 Trustee
(the “Chapter 7 Trustee”), pursuant to 11 U.S.C. § 544(a)(3) seeking to
avoid NCB’s mortgage on the one-half interest in certain property once
owned by Shirley Ingersoll’s now deceased husband.

In re: Randall J. Hake v. (Dec. 4, 2009)(Appeal from U.S. Bankruptcy Court)
- http://www.ca6.uscourts.gov/opinions.pdf/09b0012p-06.pdf
- This is an appeal of the bankruptcy court’s granting of summary
judgment in favor of Defendants Buckeye Retirement Co., LLC, Ltd.
(“Buckeye”) and Mark Gleason, Chapter 7 Trustee (the “Chapter 7
Trustee”) in the adversary proceeding brought by Plaintiffs Elm Road
Development Co. (“Elm Road”), Tuller Brookfield Associates, Inc.
(“Tuller”), Woodland Park Retirement Housing Limited Partnership
(“Woodland Park”), Daniel Daniluk (“Daniluk”) and CI Residential
Property Corp. seeking a declaratory judgment that certain property was
either not property of the Debtors’ bankruptcy estate or prohibited by
contract from being assigned or transferred by the Chapter 7 Trustee
without the consent of certain parties. The Chapter 7 Trustee had
previously moved under 11 U.S.C. § 363 to sell that property, consisting
of the Debtor Randall Joseph Hake’s (“Hake”) 50% interest in Elm Road,
32.5% interest in Tuller, and 100% interest in Randall J. Hake
Contracting Corp. (“Hake Contracting”) (collectively, the “Carve-Out
Assets”). In granting the Defendants’ summary judgment and approving the
sale of the Carve-Out Assets, the bankruptcy court concluded that the
Carve-Out Assets were property of the bankruptcy estate and that Hake’s
agreement not to sell his interests in Elm Road and Tuller, without
obtaining the prior consent of the other shareholders, constituted an
unenforceable restraint on alienation of property under Ohio law. The
bankruptcy court also concluded that the sale of Hake’s interests in
Tuller and Hake Contracting would not violate a provision of the
partnership agreement of Woodland Park that prohibits transfers of
limited partnership interests without general partner consent. For the
reasons stated below, the bankruptcy court’s order granting summary
judgment in favor of the Appellees is affirmed.