Daily Case Update Archive

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February 11, 2005

Today's topics:   ADA, ADEA, bankruptcy, Batson challenge, employment discrimination, excessive bail, First Amendment, FMLA, labor, landlord/tenant, municipal ordinances, search warrant affidavit, spousal support, statute of limitations, unions

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

Ohio Supreme Court

No opinions.
 

First District Court of Appeals

State v. Richardson (February 11, 2005)
 http://www.sconet.state.oh.us/rod/newpdf/1/2005/2005-ohio-530.pdf
 The trial court erred when it found that the state had given a plausible race-neutral explanation in response to the defendant's Batson challenge: the state's reason-that as a possible victim of discrimination because of race the juror might favor the defendant-was based on race itself, the very evil outlawed by Batson v. Kentucky (1986), 467 U.S. 79, 106 S.Ct. 1712.
 
Gladden v. Mitchell (February 11, 2005)
 http://www.sconet.state.oh.us/rod/newpdf/1/2005/2005-ohio-529.pdf
 The trial court properly awarded double damages for the wrongful withholding of a security deposit under the Landlord/Tenant Act (R.C. 5321.16[C]) even though the plaintiff had not taken possession of the rental premises: the plaintiff had agreed to an oral lease with one of the defendants, thereby establishing a landlord-tenant relationship, and had given him a security deposit in full; and when she cancelled the lease, she was entitled to have the security deposit returned.

Sargent v. Leis (February 11, 2005)
 http://www.sconet.state.oh.us/rod/newpdf/1/2005/2005-ohio-526.pdf
 Habeas corpus is an appropriate remedy to challenge excessive bail in pretrial-release cases; when the return sets forth the sheriff's justification for the petitioner's detention as specified for habeas corpus in R.C. 2725.14, the petitioner has the burden of going forward with the evidence, the burden of production, to prove that bail is excessive. A sheriff's motion to dismiss a petition for a writ of habeas corpus may be treated as the return specified in R.C. 2725.12 and 2725.14. The amount of bail is a matter within the sound discretion of the trial court; under Crim.R. 46(E), the trial court had the authority to increase the petitioner's bail at anytime, and in doing so, the court could consider the nature and circumstances of the crime charged, the weight of the evidence against the petitioner, and the confirmation of his identity. [But, see, DISSENT: When the petitioner had posted a substantial bond, made all his court appearances over a three-month period, and complied with the terms of his electronic monitoring, and when nothing else had changed since his original bond had been set, increasing the bond from $37,900 at 10% to an unconditional $175,000 was an abuse of the trial court's discretion and was unconstitutionally excessive.]

Seger v. For Women, Inc. (February 11, 2005)
 http://www.sconet.state.oh.us/rod/newpdf/1/2005/2005-ohio-528.pdf
 The trial court erred in dismissing the plaintiff's malpractice action, where the plaintiff had filed the complaint within the limitations period but had requested a delay in service of process until after the limitations period had expired: Under Civ.R. 3 and 4, an action is deemed commenced where the complaint is filed within the limitations period and service is achieved within a year of the filing, and there is no requirement that the plaintiff request service before the limitations period expires; the plaintiff's complaint was therefore timely filed when service was made within approximately five months of the time her complaint was filed within the applicable limitations period. [See SEPARATE CONCURRENCE: There is no authority in the civil rules for a plaintiff to direct the clerk to delay service of the complaint and summons, and that practice should be ended.]

State v. German (February 11, 2005)
 http://www.sconet.state.oh.us/rod/newpdf/1/2005/2005-ohio-527.pdf
 Although the information contained in an affidavit for a search warrant may have been stale or may have fallen short of establishing probable cause, the affidavit was not so lacking in indicia of probable cause that the police were not entitled to execute the warrant in good faith; the trial court therefore erred by suppressing evidence obtained as a result of the issuance of the warrant.
 

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

Tucker v. City of Fairfield (February 11, 2005) (Appeal from S.D. Ohio)
http://pacer.ca6.uscourts.gov/opinions.pdf/05a0070p-06.pdf
Union workers used a rat balloon - 12 feet high and 8 feet in diameter - as part of a picketing of a car dealership. The City had an ordinance prohibiting the use of structures in the public right of way, where the picketers were located. The union workers sought an injunction, based on First Amendment protections, prohibiting enforcement of the ordinance. The district court granted the preliminary injunction. Affirmed.

In re: Van Aken (February 11, 2005) (Appeal from N.D. Ohio Bankruptcy)
 http://pacer.ca6.uscourts.gov/opinions.pdf/05b0001p-06.pdf
Van Aken appealed a decision of the bankrupcty court that spousal support payments and attorneys fees were non-dischargeable as part of his Chapter 7 bankruptcy. The Bankruptcy Appellate Panel affirmed the bankruptcy court. 11 U.S.C. § 425(a)(5).

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

Moorer v. Baptist Memorial Health Care System (February 11, 2005) (Appeal from W.D. Tenn.)
http://pacer.ca6.uscourts.gov/opinions.pdf/05a0069p-06.pdf
Moorer sued Baptist Memorial for allegedly violating the Americans with Disabilities Act (ADA), Age Discrimination in Employment Act (ADEA), and Family Medical Leave Act(FMLA), as well as state discrimination laws. The district court granted Baptist Memorial summary judgment on the state and FMLA claims. In a bench trial, the court found for Moorer on the ADA claims but not on the ADEA claims, because Baptist Memorial regarded Moorer as having a disability because he was an alcoholic. Baptist Memorial appealed the judgment on the ADA claims, and Moorer cross-appealed summary judgment on FMLA. Affirmed the ADA judgment and reverse the summary judgment on the FMLA claims.

Other Ohio State District Court of Appeals

In re Manor Care of Parma (February 10, 2005) (10th District)
http://www.sconet.state.oh.us/rod/newpdf/10/2005/2005-ohio-524.pdf
Order of Department of Health which failed to set forth the outcome and relief ordered was not a final appealable order. Lacking a final appealable order, the court of appeals lacks jurisdiction to hear an appeal and must dismiss the action.

State v. Smith (February 10, 2005) (10th District)
http://www.sconet.state.oh.us/rod/newpdf/10/2005/2005-ohio-523.pdf
Trial court erred in failing to comply with R.C. 2929.19(B)(2)(d). The trial court failed to list any reasons for imposing the maximum term.

State v. Abdul-Mumin (February 10, 2005) (10th District)
http://www.sconet.state.oh.us/rod/newpdf/10/2005/2005-ohio-522.pdf
The trial court's imposition of non-minimum and consecutive sentences did not violate appellant's Sixth Amendment right to a trial by jury.

State ex rel. Wal-Mart v. Riley (February 10, 2005) (10th District)
http://www.sconet.state.oh.us/rod/newpdf/10/2005/2005-ohio-521.pdf
Relator's employee handbook, written corporate policies, and written warning to claimant did not constitute clearly defined prohibitive conduct so as to bar the payment of temporary total disability compensation, pursuant to State ex rel. Louisana-Pacific Corp. v. Indus. Comm. (1995), 72 Ohio St.3d 401.

State ex rel. Fleming v. Indus. Comm. (February 10, 2005) (10th District)
http://www.sconet.state.oh.us/rod/newpdf/10/2005/2005-ohio-520.pdf
Permanent total disability; objections overruled and writ of mandamus denied. Commission could draw its own conclusion from vocational report.

Crigger v. Crigger (February 10, 2005) (10th District)
http://www.sconet.state.oh.us/rod/newpdf/10/2005/2005-ohio-519.pdf
R.C. 3109.11 and 3109.051 are constitutional within the parameters of Troxel. R.C. 3109.051 is narrowly tailored and gives "special weight" to the wishes and concerns of the parents.

State v. Miller (February 10, 2005) (10th District)
http://www.sconet.state.oh.us/rod/newpdf/10/2005/2005-ohio-518.pdf
Defendant's speedy trial rights were not violated when his counsel approved of continuances of his trial date, and his convictions for robbery and assault were supported by sufficient evidence and were not against the manifest weight of the evidence.

State ex rel. Peters v. Indus. Comm. (February 10, 2005) (10th District)
http://www.sconet.state.oh.us/rod/newpdf/10/2005/2005-ohio-517.pdf
Mandamus denied; any remunerative activity outside the former position of employment precludes TTD compensation.

State ex rel. Cincinnati, Inc. v. Indus. Comm. (February 10, 2005) (10th District)
http://www.sconet.state.oh.us/rod/newpdf/10/2005/2005-ohio-516.pdf
Mandamus denied; although there was conflicting evidence before the commission, there was some evidence upon which the commission could rely in support of its grant of PTD. This court does not reweigh the evidence in mandamus.

Siemientkowski v. Moreland Homes, Inc. (February 10, 2005) (8th District)
http://www.sconet.state.oh.us/rod/newpdf/8/2005/2005-ohio-515.pdf
Attorney fees as sanction for frivolous conduct hearing.

Brown v. Cleveland (February 10, 2005) (8th District)
http://www.sconet.state.oh.us/rod/newpdf/8/2005/2005-ohio-514.pdf
Equitable estoppel; civil service; collective bargaining agreement; grievance procedure.

State v. Smith (February 10, 2005) (8th District)
http://www.sconet.state.oh.us/rod/newpdf/8/2005/2005-ohio-513.pdf
Plea bargain; plea agreement; post-sentence motion to withdraw guilty plea; Crim.R. 32.1; manifest injustice.

Reserve Recycling, Inc. V. East Hoogewerff, Inc. (February 10, 2005) (8th District)
http://www.sconet.state.oh.us/rod/newpdf/8/2005/2005-ohio-512.pdf
nterim arbitration order is not a final arbitration award capable of confirmation by application under R.C. 2711.09.

State v. Wilson (February 10, 2005) (8th District)
http://www.sconet.state.oh.us/rod/newpdf/8/2005/2005-ohio-511.pdf
DOMESTIC VIOLENCE; KIDNAPPING; ABDUCTION; CRIM.R. 29; SUFFICIENCY; R.C. 2905.02; R.C. 2919.25; MANIFEST WEIGHT.

State v. Breeden (February 10, 2005) (8th District)
http://www.sconet.state.oh.us/rod/newpdf/8/2005/2005-ohio-510.pdf
Lesser Included Offenses; Felonious Assault; Kidnapping; Eyewitness ID.

Richmond Hts. v. Myles (February 10, 2005) (8th District)
http://www.sconet.state.oh.us/rod/newpdf/8/2005/2005-ohio-509.pdf
No contest plea; advise; effect of plea; Traf.R. 10, petty offense.

Cleveland v. Franklin, Ltd. (February 10, 2005) (8th District)
http://www.sconet.state.oh.us/rod/newpdf/8/2005/2005-ohio-508.pdf
Housing code violations, misdemeanor, sentencing, mitigation, abuse of discretion, R.C. 2929.22.

Midas Internatl. Corp. v. Fischer (February 10, 2005) (8th District)
http://www.sconet.state.oh.us/rod/newpdf/8/2005/2005-ohio-507.pdf
Guaranty; Termination.

Ramacciato v. Argo-Tech Corp. (February 10, 2005) (8th District)
http://www.sconet.state.oh.us/rod/newpdf/8/2005/2005-ohio-506.pdf
AGE DISCRIMINATION; DIRECT PROOF; INDIRECT PROOF; REDUCTION IN FORCE.

Rhoades v. Cuyahoga Metro. Hous. Auth. (February 10, 2005) (8th District)
http://www.sconet.state.oh.us/rod/newpdf/8/2005/2005-ohio-505.pdf
Civ.R. 56(F); governmental immunity; civil rights violations.

Cyr v. Cyr (February 10, 2005) (8th District)
http://www.sconet.state.oh.us/rod/newpdf/8/2005/2005-ohio-504.pdf
CIV.R. 53/MAGISTRATE AUTHORITY; ABUSE OF DISCRETION; MAGISTRATE'S DECISION; OBJECTIONS TO MAGISTRATE'S DECISION; MOTION TO MODIFY CHILD SUPPORT; AFFIDAVIT; INADMISSIBLE HEARSAY; R.C 3119.021/CHILD SUPPORT GUIDELINE; CHANGE OF CIRCUMSTANCE; R.C. 3119.01(C)(7)/GROSS INCOME; EARNING CAPACITY; RETROACTIVE; R.C. 3119.04(B)/COMBINED INCOMES; MOTION TO DISMISS; MOTION FOR ATTORNEY FEES; SPOUSAL SUPPORT.

State v. Gramlich (February 10, 2005) (8th District)
http://www.sconet.state.oh.us/rod/newpdf/8/2005/2005-ohio-503.pdf
THEFT; FORGERY; IDENTIFY THEFT; TAMPERING WITH RECORDS; SENTENCING; COMMUNITY CONTROL SANCTIONS; FELONY; R.C. 2929.11; R.C. 2929.12; R.C. 2929.13(C); MAXIMUM SENTENCE.

State v. Burkhart (February 10, 2005) (8th District)
http://www.sconet.state.oh.us/rod/newpdf/8/2005/2005-ohio-502.pdf
Drug trafficking; sufficiency of evidence.

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