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 or 2006.

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March 18, 2005

Today's topics:  child custody / dependency, contract terms: ambiguity, divorce decrees, divorce: attorney fees, divorce: property valuation, municipal liability, premises liability, sentencing

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

Ohio Supreme Court

No opinions.

First District Court of Appeals

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Copeland v. City of Cincinnati (March 18, 2005) (2005-Ohio-1179)
http://www.sconet.state.oh.us/rod/newpdf/1/2005/2005-ohio-1179.pdf
Copeland was at a day camp operated by the City when he was sexually assaulted by other children at the camp. Copeland sued the City, which claimed immunity. The trial court dismissed the suit. Reversed, finding that the day care center was a proprietary function and didn't grant the City immunity.

In re Allah (March 18, 2005) (2005-Ohio-1182)
http://www.sconet.state.oh.us/rod/newpdf/1/2005/2005-ohio-1182.pdf
Allah appealed award of custody of her daughter to child's great aunt because there had been no determination that she was an unfit parent. Affirmed, because there is requirement to determine fitness on a motion to modify custody when child has been adjudicated dependent.

Mulholland v. Mulholland (March 18, 2005) (2005-Ohio-1196)
http://www.sconet.state.oh.us/rod/newpdf/1/2005/2005-ohio-1196.pdf
The Mulhollands entered into an in-court divorce settlement agreement before a magistrate, read into the record with the understanding it would be part of the final divorce decree. When the parties appeared in court, some terms were still not final, so the court used the transcript of the earlier hearing, the settlement agreement, and proposed decrees each party submitted, to issue a final divorce decree. The wife appealed, arguing that the trial court abused its discretion in creating the final decree which modified the in-court settlement agreement. Affirmed.

Ruehl v. Air/Pro, Inc. (March 18, 2005) (2005-Ohio-1184)
http://www.sconet.state.oh.us/rod/newpdf/1/2005/2005-ohio-1184.pdf
Ruehl sold products for Air/Pro under an employment contract allowing for commissions and non-competition upon leaving Air/Pro. Ruehl was terminated, and sued. Air/Pro counterclaimed on the non-compete agreement. The trial court awarded previously-earned commissions, but not accrued commissions, as the contract was ambiguous. The trial court also found for Ruehl on the non-compete, because it was ambiguous. Affirmed.

Sauter v. One Lytle Place (March 18, 2005) (2005-Ohio-1183)
http://www.sconet.state.oh.us/rod/newpdf/1/2005/2005-ohio-1183.pdf
The Sauters sued the defendant, owner of their apartment complex, after the wife slipped and fell on the kitchen floor in their apartment. Seeking damages for negligence and loss of consortium, they argued that the reason was the floor's unusual slipperiness, which the defendant knew about. The trial court granted summary judgment for the defendants. Reversed, because, although plaintiff must show how and why injury occurred, there was question of fact based on circumstances.

State v. Lowery (March 18, 2005) (2005-Ohio-1181)
http://www.sconet.state.oh.us/rod/newpdf/1/2005/2005-ohio-1181.pdf
Lowery appealed conviction and sentences on aggravated robbery and murder, on grounds including a Batson challenge that the trial court found was race-neutral. Affirmed, including the maximum sentence, because there were independent grounds on which to justify its imposition.

Zerbe v. Zerbe (March 18, 2005) (2005-Ohio-1180)
http://www.sconet.state.oh.us/rod/newpdf/1/2005/2005-ohio-1180.pdf
The Zerbes cross-appealed their final divorce decree. Mr. Zerbe argued that the award of attorney fees was done without a determination of reasonableness. Mrs. Zerbe argued that the trial court erred in granting Mr. Zerbe's motion for a new trial. Both argued that the spousal support was incorrectly awarded and property incorrectly divided. Reversed the award of attorney fees, but affirmed new trial, spousal support, and property division except as to valuation of Mr. Zerbe's medical practice.

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

No opinions.
 

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

Jacada (Europe) Ltd. v. Int'l Marketing Strategies (March 18, 2005) (Appeal from W.D. Mich.)
http://pacer.ca6.uscourts.gov/opinions.pdf/05a0137p-06.pdf
Jacada is a British software developer who contracted with IMS to distribute and market software. They agreed to arbitration of claims under Michigan state law as part a distribution agreement. IMS sought arbitration when Jacada failed to compensate for sales. At arbitration, IMS was awarded part of the revenue. Jacada filed in Michigan state court to vacate the award, and IMS in federal court to enforce it, and sought removal of the state case to federal court because the case involved the Convention on the Recognition and Enforcement of Foreign Abritral Awards (330 UNTS 38). The district court found the Convention applied, and upheld the arbitration finding. Affirmed.

United States v. Chriswell (March 18, 2005) (Appeal from W.D. Ky.)
http://pacer.ca6.uscourts.gov/opinions.pdf/05a0138p-06.pdf
Chriswell received a 2 level enhancement of his sentence for unduly influencing the "victim" (FBI agent). Reversed, finding that the enhancement doesn't apply when the victim is an undercover agent, and remanded for resentencing in light of opinion and U.S. v. Booker.
 

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