Daily Case Update

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.  This page is updated regularly.  We also keep an archive of our summaries.

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May 7, 2008

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

TOPICS:
- Public utilities * Right-of-way
- Torts * Negligence
- Courts * Subject-matter jurisdiction
- Criminal Rule 11 / Plea / Voluntary, Intelligent, and Knowingly
- Evidence / Speedy Trial / Ineffective Counsel
- Evidence / Motion for Acquittal denied / Ineffective Counsel
- Postconviction petition / New Trial
- Equipment of bicycles / Ohio Constitution: Article IV
- Awards / Attorney Fees
- Disability discrimination
- Antitrust
 

Ohio Supreme Court

 

Turner v. Ohio Bell Tel. Co. (Slip Opinion)(May 7, 2008)(2008-Ohio-2010)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2008/2008-ohio-2010.pdf
-  Public utilities * Right-of-way * Public highways * Placement of utility poles * Liability * Public utility not liable for vehicular collision with utility pole located off improved portion of roadway but within right-of-way if utility has obtained permission to install pole and pole does not interfere with usual and ordinary course of travel.
 
Shoemaker v. Gindlesberger (Slip Opinion)(May 7, 2008)(2008-Ohio-2012)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2008/2008-ohio-2012.pdf
-  Torts * Negligence * Attorneys * Beneficiary of decedent’s will may not maintain negligence action against attorney for the preparation of a deed that results in increased tax liability for the estate.
 
Cristino v. Ohio Bur. of Workers' Comp. (Slip Opinion)(May 7, 2008)(2008-Ohio-2013)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2008/2008-ohio-2013.pdf
-  Courts * Subject-matter jurisdiction * Court of Claims * Claim for money due under contract is legal, not equitable claim, and must be brought in Court of Claims.
 

First District Court of Appeals

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*** Judgment Entries ***
 
State of Ohio vs. Lucious Kennedy (May 7, 2008)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-070203_05072008.pdf
-  Kennedy was indicted for eight offenses and moved to suppress the state’s evidence. At the plea hearing, the trial court placed the following plea agreement on the record: in exchange for Kennedy’s guilty pleas to four counts, the state would dismiss the four other counts. The trial court sentenced Kennedy to an aggregate term of confinement of nine years. On appeal, Kennedy argues that his guilty pleas were not entered voluntarily. He contends that the trial court failed to inquire sufficiently into whether he had been promised anything in exchange for his pleas. Judgment AFFIRMED.
 
State of Ohio vs. Andreqio Stevens (May 7, 2008)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-070236_05072008.pdf
-  Stevens was charged in this case with two counts of trafficking in marijuana within 1000 feet of a school. A jury found him guilty, and he was sentenced to 18 months’ incarceration on each count. The terms were to be served consecutively and were also made consecutive to the sentence imposed on the community-control violation. He argues (1) that the convictions were based upon insufficient evidence and were against the manifest weight of the evidence, (2) the trial court erred in refusing to grant Stevens’s request to remove his trial counsel, (3) he was denied his right to a speedy trial, and (4) he was denied the effective assistance of counsel. Judgment AFFIRMED.
 
State of Ohio vs. Beau Tscheiner (May 7, 2008)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-070344_05072008.pdf
-  Tscheiner was convicted of sexual battery. He challenges the weight and sufficiency of the evidence upon which his conviction was based, the trial court’s denial of his Crim.R. 29 motion for an acquittal, and that defense counsel was ineffective for failing to cross-examine the victim. Judgment AFFIRMED.
 
State of Ohio vs. Glen E. Bates (May 7, 2008)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-070438_05072008.pdf
-  Bates challenges the Hamilton County Common Pleas Court’s judgment denying his postconviction petition and overruling his motion for a new trial. Judgment AFFIRMED.
 
State of Ohio vs. Tom McCarren (May 7, 2008)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-070460_05072008.pdf
-  McCurran appeals pro se a conviction for failing to have proper signal devices on a bicycle under R.C. 4511.56(A)(1). McCurran contends that the trial court erred by not complying with Traffic Rule 8(D) and ORDC §§§ 2937.02, 2937.03 and 2937.08. He failed to provide a transcript of the proceedings before the trial court. Judgment AFFIRMED.
 
Michael Jackson vs. Durabilt, Inc. (May 7, 2008)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-070528_05072008.pdf
-  In a previous appeal in this case, we held that the trial court had erred by reducing without explanation an award of attorney fees to plaintiff-appellee, Michael Jackson, from the requested amount, $16,120, to $5,400. We reversed the trial court’s judgment with respect to the award of attorney fees and ordered that, on remand, the court was to reconsider the fee award under the appropriate legal standards. On remand, the trial court awarded attorney fees of $16,120 to Jackson. Durabilt argues that the trial court erred by making the attorney-fee award without applying the proper legal standards and by failing to explain the basis for its award. Judgment AFFIRMED.
 
Michael J. Willwerth, Jr., vs. Ohio Presbyterian Retirement Services dba Llanfair Retirement Community (May 7, 2008)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-070621_05072008.pdf
-  Plaintiff-appellant, Michael J. Willwerth, Jr., appeals the summary judgment entered by the Hamilton County Court of Common Pleas in a suit alleging disability discrimination under R.C. Chapter 4112. Willwerth now argues that the trial court erred in entering summary judgment on his claim that OPRS had discriminated against him because it perceived him to be disabled. Judgment AFFIRMED.
 

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

 

No Opinions.
 

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

 

B & H Med v. ABP Admin Inc (May 7, 2008)(Appeal from E.D. MI)
-  http://www.ca6.uscourts.gov/opinions.pdf/08a0174p-06.pdf
-  In this antitrust case, we consider the legality of an agreement between non-party Blue Cross Blue Shield of Michigan (“BCBSM”) and the Defendants-Appellees, Wright & Filippis, Inc. and its subsidiary ABP Administration, Inc. preferred providers to supply durable medical equipment and prosthetics and orthotics to enrollees in certain health-benefits plans offered to Chrysler Corporation (“Chrysler”) employees and retirees and later to certain employees and retirees of Ford Motor Company, as well as participants in the Michigan Public School Employees Retirement System (“MPSERS”). Following a competitive bidding process, BCBSM selected W&F to administer the network created by the contract, which has since been renewed multiple times. After its application to join this network was rejected in 2000, Plaintiff-Appellant B & H Medical, L.L.C. (“B&H”), filed this lawsuit in September 2002, attacking the network under the antitrust laws as an illegal exclusive-dealing arrangement that allegedly barred B&H from competing in the “sale, lease or rental of medical durable equipment and medical supplies to large insurance provider networks,” which B&H claimed was the relevant market. Joint Appendix (“J.A.”) at 32-34 (Am. Compl. at ¶¶ 6-13). In a lengthy and well-reasoned opinion, the district court granted W&F’s motion for summary judgment, rejecting B&H’s definition of the relevant market and finding that B&H’s antitrust claims failed for several reasons, among them that B&H failed to demonstrate antitrust standing and that the alleged exclusive-dealing agreement foreclosed no more than thirteen percent of a properly defined relevant market. The district court later granted in part W&F’s motion for sanctions pursuant to Rule 11 of the Federal Rules of Civil Procedure, imposing over $84,000 dollars in sanctions against Attorneys-Appellants Stephen M. Ryan, P.L.L.C., and Stephen M. Ryan (collectively “Ryan”) for “failing to dismiss this case when a lengthy discovery period failed to disclose any support for the antitrust claims asserted in the complaint.” B & H Med., L.L.C. v. ABP Admin., Inc., 354 F. Supp. 2d 746, 748 (E.D. Mich. 2005). In addition to appealing the district court’s grant of summary judgment, B&H also appeals a discovery order issued by the district court that limited B&H’s efforts to obtain broad categories of information from nonparty BCBSM, and Ryan appeals the sanctions award. W&F filed a motion pursuant to Federal Rule of Appellate Procedure (“FRAP”) 38 seeking the imposition of appellate sanctions against B&H and Ryan for pursuing a frivolous appeal. For the reasons discussed below, we AFFIRM the district court in all respects and we GRANT W&F’s motion for appellate sanctions.

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