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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
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June 3, 2005
Today's topics:
- Bankruptcy: loan repayment, student loan discharge, undue hardship
- Copyright: digital sampling, exclusive right of owner to sample
- Elections: vote buying
- Family: reallocation of parental rights
- Immigration: asylum, credibility determination
- Independent contractor: duty of care
- Real estate: caveat emptor, duty to disclose, latent defects
- Sanctions: frivolous conduct
- Search and seizure: detaining "occupant" of search location, Summers test,
voluntary consent
- Tort: foreseeable injuries, ordinary duty of care
- Ohio Supreme Court
- No opinions.
- First District Court of Appeals
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[Search Other Ohio Districts]
Bryan v. Bryan (June 3, 2005) (2005-Ohio-2739)
http://www.sconet.state.oh.us/rod/newpdf/1/2005/2005-ohio-2739.pdf
Thomas W. Condit, appellant; Phyllis G. Bossin, Shannon F. Eckner
(PHYLLIS G. BOSSIN CO.), appellee
The Bryans were divorced, the wife designated residential parent, and with
court permission, she moved with their child to Florida. The husband moved for
reallocation of parental rights but the trial court granted his ex-wife's
motion to dismiss, and awarded her attorney fees and costs because it was
frivolous conduct. The husband appealed. AFFIRMED, because action was
frivolous, that "no reasonable lawyer would have brought [and maintained] the
[motion] in light of existing law."
Kramer v. Raterman (June 3, 2005) (2005-Ohio-2742)
http://www.sconet.state.oh.us/rod/newpdf/1/2005/2005-ohio-2742.pdf
Christopher T. Laber, appellants; Michael R. Schmidt (COHEN TODD KITE &
STANFORD), appellees (Ratermans); Vincent P. Antaki (REMINGER & REMINGER),
appellees (Rolfes and Hoeting Realtors)
The Ratermans owned a house on land that suffered frequent landslides, for
which they sued and settled with the builder, and which resulted in the
building of a retaining wall. The Kramers bought the house from the Ratermans
after performing their own inspection. The retaining wall failed and the
Kramers sued the Ratermans, the wall builders, and the realtors involved in
the sale. The trial court granted the defendants summary judgment. AFFIRMED,
because the Ratermans sufficiently put the Kramers on notice of the erosion
problems and did not impede inspections, and because the realtors did not have
the obligation to disclose, the Ratermans did, but REVERSED dismissal of
claims against wall builder, who was not served (dissolved company) because
court did not give Kramers notice of intent to dismiss.
Smith v. Peck Hannaford & Briggs (June 3, 2005) (2005-Ohio-2741)
http://www.sconet.state.oh.us/rod/newpdf/1/2005/2005-ohio-2741.pdf
Eli Namanworth, appellants; Edward R. Goldman, George J. Zamary (RENDIGS
FRY KIELY & DENNIS), appellee Petrochem Insulation; Brian S. Sullivan (DINSMORE
& SHOHL), appellees Fru-Con Construction and T.J. Dyer
Smith worked on a building site where the insulation process released hydrogen
sulfide and was injured. The Smiths sued his employer, and among a number of
others defendants, the general contractor and two subcontractors at the site,
for negligence and breach of duty of care. The trial court granted summary
judgment for the general and two subcontractors. AFFIRMED, because
subcontractor only had ordinary duty of care and did not breach it, and
injuries were not foreseeable,
State v. Doane (June 3, 2005) (2005-Ohio-2740)
http://www.sconet.state.oh.us/rod/newpdf/1/2005/2005-ohio-2740.pdf
Wendy R. Calloway, appellant; James Michael Keeling, Asst. Pros. Atty.
(Hamilton), appellee
Doane pled no-contest to cocaine possession and appealed trial court's
denial of motion to suppress. Doane was detained 4 blocks from his apartment,
where police executed a search warrant. No contraband was found in apartment,
but officer questioned Doane and found cocaine on him. Doane was not mentioned
in the warrant, and argued that police did not have probable cause to stop
him. REVERSED, because detention was unduly intrusive and off-premises where
Doane was not fleeing the apartment or likely to destroy evidence since he was
unaware of the search, and his consent to search his person was involuntary.
- U.S. Sixth Circuit Court of Appeals: Ohio Cases
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Tirch v. Penn. Higher Educ. Assist. Agcy. (June 3, 2005) (Appeal from
Bankruptcy Appellate Panel)
http://www.ca6.uscourts.gov/opinions.pdf/05a0242p-06.pdf
Donald J. Rafferty (COHEN TODD KITE & STANFORD), appellant; D. William
Davis (DAVIS LAW OFFICE), appellee
PHEAA appealed the bankruptcy court's partial discharge of Tirch's student
loan debt. REVERSED, because Tirch did not demonstrate "undue hardship" using
the Brunner test.
- U.S. Sixth Circuit Court of Appeals: Other States Cases
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Bridgeport Music Inc. v. Dimension Films (June 3, 2005) (Appeal from M.D.
Tenn.)
http://www.ca6.uscourts.gov/opinions.pdf/05a0243a-06.pdf
Plaintiffs sued defendants for sampling of song used in a film. District
court granted summary judgment, finding the copyright infringemente de minimis.
Plaintiffs appealed summary judgment, as well as denial of motion to amend
complaint to allege additional infringement and attorney fees. REVERSED
summary judgment, finding that owner of music has exclusive right to sample,
and REMANDED for district court to review and consider any defenses, such as
fair use, in light of decision, and AFFIRMED dismissal of motion to amend and
for attorney fees.
Liti v. Gonzales (June 3, 2005) (Appeal from Board of Immigration Appeals
(MI))
http://www.ca6.uscourts.gov/opinions.pdf/05a0241p-06.pdf
The Board of Immigration Appeals denied the Liti's request for asylum and they
petitioned for review. DENIED, because Liti's claims unsupported by evidence,
even though the BIA did not determine credibility properly, and because the
Litis did not exhaust administrative remedies. Order STAYED for review of
claim under regulation (8 CFR § 1208) issued in 2001 after appeal brought.
United States v. Slone (June 3, 2005) (Appeal from E.D. Ky.)
http://www.ca6.uscourts.gov/opinions.pdf/05a0240p-06.pdf
Slone pled guilty to vote buying in a federal election, and appealed his
conviction and sentence, arguing that the facts admitted at hearing weren't
sufficient to constitute basis for finding him guilty of a crime, because
actions only involved county official although federal offices were on
ballot. AFFIRMED, because federal statute applies to all elections in which
federal office is on ballot.
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