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 17, 2006

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

TOPICS:
- Sentencing
- Attorney Misconduct
- Domestic Relations - legal custody
- Real-Property taxes - Flood Control Act of 1954
- Closing of municipal crossings
- Insurance - Law-enforcement liability
- Speedy-trial statues
- Evidence - Manifest weight
- Frivolous Appeal
- Civil Rule - Lack of certification language
- Civil Rule - clerical mistake
- Immigration - Convention Against Torture
- Tennessee Consumer Protection Act
- Jurisdiction - collateral order doctrine
 

Ohio Supreme Court

 

In re Ohio Criminal Sentencing Statutes Cases (May 17, 2006) (2006-Ohio-2394)
-  http://www.sconet.state.oh.us/rod/newpdf/0/2006/2006-ohio-2394.pdf
-  Criminal law * Felonies * Sentencing * Cases accepted and disposed of on the authority of State v. Foster.
 
Toledo Bar Assn. v. Vild (May 17, 2006) (2006-Ohio-2186)
-  http://www.sconet.state.oh.us/rod/newpdf/0/2006/2006-ohio-2186.pdf
-  Attorneys * Misconduct * Intentionally failing to seek client's lawful objective * Engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation * Neglecting entrusted legal matter * Failure to cooperate in a disciplinary investigation * Permanent disbarment.
 
In re D.P. (May 17, 2006) (2006-Ohio-2185)
-  http://www.sconet.state.oh.us/rod/newpdf/0/2006/2006-ohio-2185.pdf
-  Legal custody by a non-parent * Court of appeals' judgment affirmed on the authority of In re C.R., 108 Ohio St.3d 369, 2006-Ohio-1191, 843 N.E.2d 1188.
 
In re K.K. (May 17, 2006) (2006-Ohio-2184)
-  http://www.sconet.state.oh.us/rod/newpdf/0/2006/2006-ohio-2184.pdf
-  Legal custody by a non-parent * Court of appeals' judgment affirmed on the authority of In re C.R., 108 Ohio St.3d 369, 2006-Ohio-1191, 843 N.E.2d 1188.
 
State ex rel. Lakeview Local School Dist. Bd. of Edn. v. Trumbull Cty. Bd. of Commrs. (May 17, 2006) (2006-Ohio-2183)
-  http://www.sconet.state.oh.us/rod/newpdf/0/2006/2006-ohio-2183.pdf
-  Federal lands acquired for flood control * Federal payments in lieu of real property taxes * O.R.C. 5705.11.
 
In re Guardianship of Peck (May 17, 2006) (2006-Ohio-2182)
-  http://www.sconet.state.oh.us/rod/newpdf/0/2006/2006-ohio-2182.pdf
-  Appeal dismissed as improvidently accepted.
 
Reading v. Pub. Util. Comm. (May 17, 2006) (2006-Ohio-2181)
-  http://www.sconet.state.oh.us/rod/newpdf/0/2006/2006-ohio-2181.pdf
-  Home Rule Amendment to Ohio Constitution * Constitutionality of O.R.C. 4907.474 * As-applied versus facial constitutional challenges to statutes * State's valid exercise of its police powers * Statewide-concern doctrine * The closing of railroad grade crossings is not a power of local self-government.
 
Sharonville v. Am. Employers Ins. Co. (May 17, 2006) (2006-Ohio-2180)
-  http://www.sconet.state.oh.us/rod/newpdf/0/2006/2006-ohio-2180.pdf
-  Insurance * Law-enforcement liability * Complaint alleging police officers' coverup of crimes * Insurer has duty to defend officers * When policy has been lost or destroyed, its existence and terms may be proved by secondary evidence, unless record contains evidence of bad faith.
 

First District Court of Appeals

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*** JUDGMENT ENTRIES ***
 
State v. Collins (May 17, 2006)
-  http://www.hamilton-co.org/appealscourt/Decisions/C-040557.pdf
-  Collins appeals judgment convicting her of failing to pay income tax under Forest Park Codified Ordinance 91.16, a misdermeanor of the third degree. She argues that the trial court erred in denying her motion to dismiss for violation of the speedy-trial statute. Judgment REVERSED and Collins is discharged from further prosecution in this matter.
 
State v. Meyerratken (May 17, 2006)
-  http://www.hamilton-co.org/appealscourt/Decisions/C-050323.pdf
-  Gardiner filed a criminal complaint against Meyerratken for assault, a first-degree misdemeanor. Gardiner filed the complaint after an altercation developed between Meyerratken and herself over her dogs' barking.  The trial court found Meyerratken guilty of assault and imposed a 180-day sentence, with 177 days suspended. Meyerratken was also fined $250 and placed on probation for one year. He now appeals, claiming that his conviction was against the manifest weight of the evidence. Judgment AFFIRMED.
 
State v. Hood (May 17, 2006)
-  http://www.hamilton-co.org/appealscourt/Decisions/C-050510.pdf
-  Jack Hood appeals his conviction for possession of cocaine, a felony of the fifth degree. His attorney has moved this court for permission to withdraw as counsel. Overrule counsel's motion to withdraw from his representation of Hood and AFFIRM the judgment of the trial court.
 
People First Recoveries, et al. v. DeBra (May 17, 2006)
-  http://www.hamilton-co.org/appealscourt/Decisions/C-050576.pdf
-  DeBra appeals from the trial court's order dismissing his counterclaim under Civ.R. 12(B)(6) for failure to state a claim upon which relief could be granted. Because the trial court's order of dismissal lacks Civ.R. 54(B) certification language, and because the plaintiffs-appellees' claim is still pending in the trial court, we do not reach the merits of DeBra's assignment of error. Instead, we must dismiss his appeal.
 
State v. Figgs (May 17, 2006)
-  http://www.hamilton-co.org/appealscourt/Decisions/C-050686.pdf
-  Figgs appeals his conviction for two counts of burglary, punishable as second-degree felonies, and one count of attempted burglary, punishable as a third-degree felony. His attorney has moved this court for permission to withdraw as counsel. Overrule counsel's motion to withdraw from his representation of Figgs and AFFIRM the judgment of the trial court.
 
State v. Butler (May 17, 2006)
-  http://www.hamilton-co.org/appealscourt/Decisions/C-050693.pdf
-  Butler appeals his convictions for voluntary manslaughter, an accompanying gun specification, and having a weapon under a disability. His attorney has moved this court for permission to withdraw as counsel. Overrule counsel's motion to withdraw from his representation of Butler and AFFIRM the judgment of the trial court.
 
Mink v. Helmick, et al. (May 17, 2006)
-  http://www.hamilton-co.org/appealscourt/Decisions/C-050705.pdf
-  Mink appeals from the trial court's denial of his Civ.R. 60(A) motion to correct a clerical mistake. Judgment AFFIRMED.
 

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

 

Kelly v. Great Seneca (May 17, 2006) Appeal from S.D. Ohio
-  http://www.ca6.uscourts.gov/opinions.pdf/06a0167p-06.pdf
-  The defendants in this interlocutory appeal ask us to review the district court's nonfinal order denying them, among other things, the defense of absolute witness and advocacy immunity in an action concerning unfair debt-collection practices. The preliminary issue in this case is whether this court has appellate jurisdiction to entertain the defendants' interlocutory appeal under the collateral order doctrine. Only five days after this court held in another case that we have jurisdiction to hear interlocutory appeals concerning witness immunity, the Supreme Court of the United States decided Will v. Hallock, __ U.S. __, 126 S. Ct. 952 (2006), which clarified when appellate courts have jurisdiction under the collateral order doctrine. In light of Will, we dismiss this appeal for lack of jurisdiction. We also decline to grant mandamus relief.
 

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

 

Power & Tele v. SunTrust Banks (May 17, 2006) Appeal from W.D. Tennessee
-  http://www.ca6.uscourts.gov/opinions.pdf/06a0166p-06.pdf
-  Plaintiff Power & Telephone Supply Company, Inc. (P&T), brought this action against the interrelated SunTrust defendants seeking to recover $6 million in costs incurred under two derivative interest rate "swap" agreements that P&T entered into as a hedge against increases in the variable interest rate on its syndicated lines of credit.1 P&T's third amended complaint asserted claims against the SunTrust defendants under theories of breach of contract, breach of fiduciary duty, agency, negligence, common law suitability, deceptive trade practices in violation of the Tennessee Consumer Protection Act (TCPA) (Tenn. Code Ann. § 47-18- 109(a)(1)), and illegal tying under the Bank Holding Company Act (12 U.S.C. § 1972).2 The district court first dismissed some of P&T's claims, and then granted summary judgment to defendants on the rest. Defendants brought a counterclaim seeking indemnification for the attorney fees and costs incurred in defending this action. The district court granted summary judgment to defendants on their counterclaim, and subsequently entered judgment in defendants' favor in the amount of $802,535.93.  On appeal, P&T challenges the dismissal of (1) its intentional misrepresentation claim for failure to satisfy Fed. R. Civ. P. 9(b), and (2) its claim under the TCPA as barred by the one-year statute of limitations set forth in Tenn. Code Ann. § 47-18-110. Also, while abandoning its claim for breach of fiduciary duty, P&T contends that the district court erred in granting summary judgment to defendants on its negligence claim. Finally, P&T argues that the district court erred in finding that defendants were entitled, either singly or collectively, to indemnification under one or more provisions of the written agreements. No challenge is made to the reasonableness of the amount of the judgment. After review of the extensive record and the arguments presented on appeal, we affirm.
 
 Tran v. Gonzales  (May 17, 2006) Board of Immigration Appeals
-  http://www.ca6.uscourts.gov/opinions.pdf/06a0165p-06.pdf
-  Petitioner seeks review of a decision from the Board of Immigration Appeals (BIA) ordering that petitioner, Quang Ly Tran, an ethnic Chinese from Vietnam, be removed to Vietnam. The BIA reversed the decision of the immigration judge (IJ), who had found Tran removable because he had been convicted of an aggravated felony, but deferred his deportation because Tran qualified for protection under the Convention Against Torture (CAT). In two appeals consolidated for our review, Tran argues that the BIA erred by retroactively applying the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) to Tran's pre-IIRIRA felony convictions and by concluding that Tran is not eligible for protection under the CAT. We conclude that the IIRIRA's provision allowing for the deportation of aliens convicted of an aggravated felony was properly applied to Tran's pre-IIRIRA conviction, but we remand Tran's CAT claim to the BIA for clarification of the standards and burdens of proof it employed in reviewing Tran's appeal.

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