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.

If you would like to receive a daily e-mail with same-day case updates, please join our Members-Only discussion list.  Not a member?  Join today!

May 10, 2006

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

TOPICS:
- Attorney Misconduct
- Workers' compensation
- Local Rule - termination of attorney-client relationship
- PERS - Sick-leave conversion
- Right to a fair and impartial jury
- Zoning regulations - interim development control
- Sentencing
- Withdrawal from Counsel - frivolous appeal
- Contract - damages-limitation clauses
- Age Discrimination in Employment Act
- Immigration - claims of asylum

 

Ohio Supreme Court

 

Richland Cty. Bar Assn. v. Bourdeau (May 10, 2006) (2006-Ohio-2039)
-  http://www.sconet.state.oh.us/rod/newpdf/0/2006/2006-ohio-2039.pdf
-  Attorneys at law * Misconduct * Communication with a party known to be represented by counsel without that counsel's consent * Public reprimand.
 
Cincinnati Bar Assn. v. Blankemeyer (May 10, 2006) (2006-Ohio-2038)
-  http://www.sconet.state.oh.us/rod/newpdf/0/2006/2006-ohio-2038.pdf
-  Attorneys at law * Misconduct * Conduct involving dishonesty, deceit, fraud, or misrepresentation * Conduct adversely reflecting on fitness to practice law * Conviction on felony theft offenses * Disbarment.
 
Cuyahoga Cty. Bar Assn. v. Ballou (May 10, 2006) (2006-Ohio-2037)
-  http://www.sconet.state.oh.us/rod/newpdf/0/2006/2006-ohio-2037.pdf
-  Attorneys * Misconduct * Neglecting an entrusted legal matter * Public reprimand.
 
State ex rel. Erieview Metal Treating Co. v. Indus. Comm. (May 10, 2006) (2006-Ohio-2036)
-  http://www.sconet.state.oh.us/rod/newpdf/0/2006/2006-ohio-2036.pdf
-  Workers' compensation * Allocation between employers of responsibility for cost of permanent total disability * Last - injurious - exposure rule limited to initial allowance of claim * Commission's reliance on prior assessment of compensation against employer upheld.
 
Smith v. Conley (May 10, 2006) (2006-Ohio-2035)
-  http://www.sconet.state.oh.us/rod/newpdf/0/2006/2006-ohio-2035.pdf
-  Date of termination of attorney-client relationship for purposes of O.R.C. 2305.11 is not dependent upon the date of filing a motion to withdraw pursuant to local rule of court.
 
Davenport v. Montgomery Cty. (May 10, 2006) (2006-Ohio-2034)
-  http://www.sconet.state.oh.us/rod/newpdf/0/2006/2006-ohio-2034.pdf
-  Public employees * Retirement * O.R.C. 124.39 * Sick-leave conversion * Absent a policy by the employing political subdivision permitting such conversion, a public employee cannot convert unused sick leave into cash if employee separates from service before he or she is eligible to retire under O.R.C. 145.32.
 

First District Court of Appeals

[Search Other Ohio Districts]
 

*** JUDGMENT ENTRIES ***
 
State v. Wright (May 10, 2006)
-  http://www.hamilton-co.org/appealscourt/Decisions/C-050020.pdf
-  Wright was convicted of two counts of murder in violation of O.R.C. 2903.02(A) and (B) and having a weapon while under a disability in violation of O.R.C. 2923.13(A)(3). The trial court imposed a sentence of fifteen years to life in prison. Wright argues that his right to a fair and impartial jury was impaired when the trial court permitted a juror who had had contact with the prosecutor at a holiday party to remain on the jury. Wright maintains that the trial court erred by convicting him of the murder offenses when he had proved the affirmative defense of self-defense by a preponderance of the evidence. He also, contests the sufficiency and the weight of the evidence underlying his convictions. Judgment AFFIRMED.
 
Skyy Propertes, LLC., et al. v. The City of Cincinnati (May 10, 2006)
-  http://www.hamilton-co.org/appealscourt/Decisions/C-050051.pdf
-  Skyy Properties, LLC, purchased property in Kennedy Heights to build and operate a drive-through beverage and grocery business. The property was zoned for retail uses. The city of Cincinnati adopted temporary interim development control overlay district ("IDC") No. 57 for Kennedy Heights. IDCs are used by the City to temporarily freeze development while new zoning regulations are considered and adopted. Skyy requested the trial court to issue a writ of mandamus ordering the City to issue its building permit. The trial court granted the writ, holding that IDC No.75 was void and that "no IDC was in effect at the time [Skyy's] application for a building permit was filed." The City's argument that the issuance of a writ of mandamus was improper because Skyy did not exhaust its administrative remedies fails. We hold that the trial court was correct in determining that there was no administrative process for Skyy to exhaust because IDC No. 75 was invalid, and, therefore, there were no IDC restrictions in place from which Skyy could pursue an administrative appeal. Judgment AFFIRMED.
 
State v. Berry (May 10, 2006)
-  http://www.hamilton-co.org/appealscourt/Decisions/C-050110.pdf
-  Berry pled guilty to one count of failure to comply with an order or signal of a police officer, in violation of O.R.C. 2921.331(B), and to one count of receiving stolen property, in violation of O.R.C. 2913.51(A). The trial court sentenced him to more than the minimum prison term on each count and ordered the sentences to run consecutively for a total of five years' incarceration. Berry now appeals his sentence. We VACATE the trial court's sentence and REMAND this cause for resentencing in accordance with law, with each term imposed by the trial court to run consecutively.
 
State v. Likens (May 10, 2006)
-  http://www.hamilton-co.org/appealscourt/Decisions/C-050144.pdf
-  Likens appeals his conviction for one count of importuning and the trial court's adjudication of him as a sexual predator. Likens pleaded guilty to importuning, and the trial court sentenced him to three years of community control. Counsel has reviewed the record, has found no grounds for appeal and request permission to withdraw.  We conclude that Likens's appeal is without merit and wholly frivolous. Therefore, we overrule counsel's motion to withdraw and affirm the judgment of the trial court.
 
State v. Dailey (May 10, 2006)
-  http://www.hamilton-co.org/appealscourt/Decisions/C-050145.pdf
-  Dailey was indicted for two counts of felonious assault against police Officers, carrying a concealed weapon, and having a weapon under a disability. At trial, Dailey stipulated to the operability of the gun, which police had recovered at the scene. The trial court granted Dailey's Crim.R. 29 motion with respect to the felonious assault of Deegan, but convicted him of the remaining charges. Dailey alleges that his convictions for felonious assault and carrying a concealed weapon were based on insufficient evidence; that they were against the manifest weight of the evidence; and that the trial court erred by denying his motions for a judgment of acquittal. We AFFIRM Dailey's convictions, but VACATE his sentence, and REMAND this cause for resentencing in accordance with Foster.
 
Scott Reising Jewelers, Inc., et al. v. ADT Security Services, Inc., et al. (May 10, 2006)
-  http://www.hamilton-co.org/appealscourt/Decisions/C-050322.pdf
-  Scott Reising Jewelers ("Reising") and its insurer, Great American Insurance Company ("Great American"), brought this action against ADT Security Services, Inc. ("ADT"), seeking compensation for damages incurred after the Reising jewelry store was burglarized. Reising and Great American filed this action against ADT and the city of Cincinnati, alleging a loss of $228,843.50 as a result of ADT's and the city's gross negligence. The city of Cincinnati was eventually dismissed as defendant. ADT moved for summary judgment, arguing that as a matter of law the claim was barred by terms set out in Paragraph E of the security sales and service contract, including a one-year statute of limitations and liability- and damages-limitation clauses. Alternatively, ADT argued that the record did not contain any evidence establishing that ADT had proximately caused the damages. The trial court granted summary judgment to ADT but did not specify the basis for the judgment. Reising and Great American have separately appealed from this judgment. We have consolidated these appeals. Accordingly, we sustain Reising's first and third assignments of error and overrule Reising's second assignment of error. Great American's sole assignment of error is sustained in part. We reverse the trial court's entry of summary judgment and remand this case for further proceedings consistent with this judgment entry.
 
State v. Neack (May 10, 2006)
-  http://www.hamilton-co.org/appealscourt/Decisions/C-050755.pdf
-  Neack pled guilty to gross sexual imposition and importuning. The trial court sentenced Neack to concurrent, non-minimum sentences and, following a hearing, adjudicated Neack a sexual predator. Neack now appeals the trial court's sentence and sexual-predator adjudication. We AFFIRM Neack's sexual-predator adjudication but VACATE Neack's sentence. This case is REMANDED for re-sentencing in accordance with Foster.
 

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

 

Jones v. City of Cortland (May 10, 2006) Appeal from N.D. Ohio
-  http://www.ca6.uscourts.gov/opinions.pdf/06a0156p-06.pdf
-  Jones brought this action under the Age Discrimination in Employment Act (ADEA), 42 U.S.C. § 1983, Ohio Revised Code § 4112.14 and the common law of Ohio. At the age of fifty-four, Jones had applied for a position as a full-time Cortland, Ohio police officer. He passed his civil service exam and received a conditional offer in writing, which Cortland later revoked because Jones was over thirty-five years old. Jones sued Cortland, alleging age discrimination and breach of contract. The district court granted summary judgment for the City on the age discrimination claims and, in a subsequent order, dismissed the contract claims. Jones appeals and we AFFIRM.
 

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

 

Chen v. Gonzales and Lin v. Gonzales (May 10, 2006) Board of Immigration Appeals
-  http://www.ca6.uscourts.gov/opinions.pdf/06a0157p-06.pdf
-  Petitioners Duan Ying Chen and her husband, Jin-He Lin, are citizens of the People's Republic of China who sought refuge in this country after Chen was allegedly forced to undergo a sterilization procedure following the birth of the couple's second child. The immigration judge and the Board of Immigration Appeals (BIA) ultimately rejected the petitioners' claims of asylum and withholding of removal, and Chen and Lin now appeal those determinations, contending that they are not supported by substantial evidence. When a court "reverses an adverse credibility finding, 'remand to determine whether [the petitioner] qualifies as a refugee is the appropriate remedy.'" Pergega v. Gonzales, 417 F.3d 623, 630-31 (6th Cir. 2005) (citation omitted). Because the record not only fails to support the conclusion that petitioners Lin and Chen were unworthy of belief but actually compels a contrary conclusion, we GRANT the petition for review and REMAND this matter to the BIA with directions to return the case to the immigration court, preferably before a different judge, for reconsideration and for any further proceedings that may be considered necessary and consistent with this opinion.
 

Daily Case Updates