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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May 18, 2005

Today's topics:
- Attorney misconduct
- Bankruptcy: trustee as bona fide purchaser of property
- Individuals with Disabilities Act (IDEA): parental right to sue
- Insurance: policy and unrelated damages
- Pro se litigants: parents can't appear for minor
- Real estate: mortgages voidable, witness statute not retroactive
- Search: possessory interest in searched apartment
- Sentencing: enhancements, consecutive, violation of community control
- Sufficiency of evidence: prejudicial
- Taxation: sales tax, provider of employment services
- Workers Comp: disqualification by abandonment of employment, new claim not barred by res judicata if based on new evaluation

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

Ohio Supreme Court

Buckley v. Wilkins (May 18, 2005) (2005-Ohio-2166)
http://www.sconet.state.oh.us/rod/newpdf/0/2005/2005-ohio-2166.pdf 
Taxation - State income tax - Wages and salaries are income.

Crew 4 You, Inc. v. Wilkins (May 18, 2005) (2005-Ohio-2167)
http://www.sconet.state.oh.us/rod/newpdf/0/2005/2005-ohio-2167.pdf 
Taxation - Sales tax - R.C. 5739.01(B)(3)(k) and (JJ) - Employment service - "Crewing" company for live broadcasts is provider of employment service subject to sales tax - R.C. 5739.01(E) - Resale exception to sales tax - Exception does not apply to employment service when services are not resold in same form in which they are purchased.

Estate of Nord v. Motorists Mut. Ins. Co. (May 18, 2005) (2005-Ohio-2165)
http://www.sconet.state.oh.us/rod/newpdf/0/2005/2005-ohio-2165.pdf 
Insurance - Uninsured-motorist provision - An uninsured-motorist provision of an automobile-insurance contract that limits coverage to damages arising from ownership, maintenance, or use of the uninsured vehicle does not cover damages caused by an event unrelated to that ownership, maintenance, or use.

State ex rel. Bunting v. Haas (May 18, 2005) (2005-Ohio-2161)
http://www.sconet.state.oh.us/rod/newpdf/0/2005/2005-ohio-2161.pdf 
Writ of procedendo - Motion for show cause contempt order denied, when.

State ex rel. Duncan v. Mentor City Council (May 18, 2005) (2005-Ohio-2163)
http://www.sconet.state.oh.us/rod/newpdf/0/2005/2005-ohio-2163.pdf 
Mandamus sought to compel city of Mentor to commence appropriation proceedings to determine the amount for the city's taking of relator's property - City's summary-judgment motion denied, when.

State ex rel. Marion Cty. N. Cent. Ohio Rehab. Ctr. v. Snare (May 18, 2005) (2005-Ohio-2164)
http://www.sconet.state.oh.us/rod/newpdf/0/2005/2005-ohio-2164.pdf 
Workers' compensation-Temporary total disability compensation-Disqualification by voluntary abandonment of employment-Issue of effect of subsequent employment waived.

Toledo Bar Assn. v. Lowden (May 18, 2005) (2005-Ohio-2162)
http://www.sconet.state.oh.us/rod/newpdf/0/2005/2005-ohio-2162.pdf 
Attorneys - Misconduct - Engaging in conduct involving deceit, fraud, misrepresentation, or dishonesty - Engaging in conduct prejudicial to the administration of justice - Neglecting an entrusted legal matter - Failing to carry out a contract of employment - Failing to cooperate in a disciplinary investigation - Two-year suspension, all stayed, on conditions.

First District Court of Appeals

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State v. Beach (May 18, 2005)
http://www.hamilton-co.org/appealscourt/Decisions/C-040525.pdf 
Beach appealed classification as sexual predator. AFFIRMED.

State v. Garrett (May 18, 2005)
http://www.hamilton-co.org/appealscourt/Decisions/C-040271.pdf 
Garrett appealed denial of motion to suppress following his conviction. AFFIRMED, personal papers showed possessory interest in apartment in which firearms found.

State v. Humphrey (May 18, 2005)
http://www.hamilton-co.org/appealscourt/Decisions/C-040600.pdf 
Humphrey pled guilty to non-support of dependents and then violated community control. He was resentenced to the maximum. He appealed,
arguing the trial court abused its discretion by not continuing community control, by referring to support as a moral obligation, and that the sentences should not have been consecutive and the maximum.  AFFIRMED, although court should not have used relationship between defendant and victim to find the defendant's conduct more serious in a non-support case.

State v. Krois (May 18, 2005)
http://www.hamilton-co.org/appealscourt/Decisions/C-040543.pdf 
Krois pled guilty and was sentenced to community control, which he violated. He was sentenced and appealed. Sentence was vacated and  Krois was resentenced. He appealed the new sentences, which were consecutive for multiple offenses. AFFIRMED.

State v. Lackey (May 18, 2005)
http://www.hamilton-co.org/appealscourt/Decisions/C-040445.pdf 
Lackey was convicted of non-support of dependants and did not appeal. He then violated community control and did not appeal his sentences. He filed a 60(b) motion to set aside convictions, and the trial court overruled the motion. AFFIRMED.

State v. Reed (May 18, 2005)
http://www.hamilton-co.org/appealscourt/Decisions/C-040586.pdf 
Reed appealed classification as sexual predator. AFFIRMED.

Yauger v. Adm'r, Bureau of Workers Compensation (May 18, 2005)
http://www.hamilton-co.org/appealscourt/Decisions/C-040424.pdf 
Yauger suffered injuries and applied for workers compensation. The Bureau approved one claim and denied a second. Yauger visited a doctor and, based on the treatment, filed a third claim, which was denied based on res judicata. Yauger appealed and the trial court granted the Bureau summary judgment. REVERSED, because new medical report should have allowed new claim.

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

Cavanaugh v. Cardinal Local Sch. Dist. (May 18, 2005) (Appeal from N.D. Ohio)
http://www.ca6.uscourts.gov/opinions.pdf/05a0222p-06.pdf
The Cavanaughs sued the School District under the Individuals with Disabilities in Education Act, arguing that the district did not give their son a "free appropriate public education" (FAPE). The district moved to dismiss for lack of subject matter jurisdiction, arguing that the IDEA does not allow the Cavanaughs to appear pro se on behalf of their minor son. The district court granted the motion and the Cavanaughs appealed. AFFIRMED, that the IDEA does not change common law rule that non-lawyers may not represent litigants in court, and right to FAPE is son's, not parents.

Kovacs v. First Union Home Equity Bank (May 18, 2005) (Appeal from N.D. Ohio)
http://www.ca6.uscourts.gov/opinions.pdf/05a0221a-06.pdf 
A bankruptcy trustee avoided three mortgages, with two of them "voidable by . . . a bona fide purchaser" because they were not properly witnessed. The Ohio statute enacted at the time was found to be unconstitutional, which caused the mortgages to be voidable. The statute was amended to fix the constitutional problem. The district court reversed the bankruptcy court in one case and granted summary judgment to the trustee in the second two. VACATED reversal, REMANDED for evidentiary hearing as to whether it was witnessed properly, and AFFIRMED summary judgment in other two cases, because amended statute did not apply retroactively to trustee's rights.

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

United States v. Bowden (May 18, 2005) (Appeal from W.D. Mich.)
http://www.ca6.uscourts.gov/opinions.pdf/05a0225p-06.pdf 
Court's opinion was reversed by US Supreme Court. Opinion REINSTATED, but sentence VACATED, and case REMANDED for resentencing.

United States v. Davidson (May 18, 2005) (Appeal from E.D. Ky.)
http://www.ca6.uscourts.gov/opinions.pdf/05a0224p-06.pdf 
The Davidsons appealed their sentences, arguing the application of sentencing enhancements based on judge-found facts was improper.  VACATED, based on US v Booker, and finding that Substantial Risk of Harm enhancement was inappropriate.

United States v. Wesley (May 18, 2005) (Appeal from E.D. Mich.)
http://www.ca6.uscourts.gov/opinions.pdf/05a0223p-06.pdf 
Wesley was convicted of attempted bank robbery and appealed both conviction and sentence. REVERSED and REMANDED, although motion for judgment of acquittal was specific and so waived argument that conviction required proof of "actual intimidation", value of evidence was outweighed by danger of prejudice.
 

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