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 , 2006 , 2007 , 2008 , 2009 , 2010 , 2011.

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July 24th thru 28th, 2006

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

TOPICS:
- Eminent Domain
- Attorney Misconduct
- Ohio Manual of Traffic Control Devices
- Workers' compensation
- Evidence * Expert opinion
- Contracts
- Tort Miscellaneous
- Habeas Corpus -  ineffective assistance of counsel
- Ohio's Political Subdivision Tort Liability Act
- Individuals with Disabilities Education Act
- Causes of Actions - Damages - Wrongful Death
- Bankruptcy - Commercial debt
- Civil Rights Act of 1964
- Motion in limine to exclude testimony evidence
 

Ohio Supreme Court

 

Norwood v. Horney (July 26, 2006) (2006-Ohio-3799)
-  http://www.sconet.state.oh.us/rod/newpdf/0/2006/2006-ohio-3799.pdf
-  In the absence of other public benefit, the fact that an appropriation of property will provide an economic benefit to the community does not satisfy the public-use requirement of Section 19, Article I of the Ohio Constitution ― The void-for-vagueness doctrine applies to statutes that regulate the use of eminent-domain powers ― Courts shall apply heightened scrutiny when reviewing statutes that regulate the use of eminent-domain powers ― The term "deteriorating area" as a standard for an appropriation of property is unconstitutional ― R.C. 163.19 is unconstitutional in part.

Mahoning Cty. Bar Assn. v. Olivito (July 26, 2006) (2006-Ohio-3564)
-  http://www.sconet.state.oh.us/rod/newpdf/0/2006/2006-ohio-3564.pdf
-  Attorneys at law ― Misconduct ― Multiple violations of Disciplinary Rules and failure to cooperate in the disciplinary process ― Two-year suspension with one year stayed on condition.

Bowling Green v. Godwin (July 26, 2006) (2006-Ohio-3563)
-  http://www.sconet.state.oh.us/rod/newpdf/0/2006/2006-ohio-3563.pdf
-  Traffic stop ― Probable cause ― Failure to observe traffic-control device ― Probable cause to stop exists when officer observes motorist violating a traffic-control device that on its face complies with the Ohio Manual of Traffic Control Devices, even when device was not authorized by city council as required by local ordinance ― Officer cannot reasonably be expected to know that sign was not authorized ― Fact that motorist could not be convicted of cited offense because of sign's lack of authorization does not invalidate stop.

State ex rel. Estate of McKenney v. Indus. Comm. (July 26, 2006) (2006-Ohio-3562)
-  http://www.sconet.state.oh.us/rod/newpdf/0/2006/2006-ohio-3562.pdf
-  Workers' compensation ― Scheduled loss awards under R.C. 4123.57(B) ― Dependent's estate denied payment unaccrued at dependent's death.

Valentine v. Conrad (July 26, 2006) (2006-Ohio-3561)
-  http://www.sconet.state.oh.us/rod/newpdf/0/2006/2006-ohio-3561.pdf
-  Evidence * Expert opinion * Reliability * Evid.R. 702(C) * Expert opinions that chemical exposure in workplace caused disease and death of plaintiff's decedent not supported by scientific principles or methodology * No basis in literature for finding causal connection between exposure to particular chemicals and particular disease contracted by plaintiff's decedent ― Opinions inadmissible.
 

First District Court of Appeals

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*** Judgment Entries ***
State v. Dorsey (July 26, 2006)
-  http://www.hamiltoncountyohio.gov/appealscourt/Decisions/C-050429.pdf
-  Police stopped the car defendant-appellant Ramon Dorsey was driving. During a search of the car, police found a gun in the pocket of the driver's side door. Dorsey was charged with domestic violence, having a weapon while under a disability, and carrying a concealed weapon. Judgment AFFIRMED.

State v. Jones (July 26, 2006)
-  http://www.hamiltoncountyohio.gov/appealscourt/Decisions/C-050445.pdf
-  Defendant-appellant David Jones was found guilty of receiving a stolen Lexus automobile, but not guilty of receiving a stolen license plate. The trial court sentenced him to seventeen months' incarceration. Jones appeals his conviction for receiving a stolen automobile. Judgment AFFIRMED.

State v. Kovac (July 26, 2006)
-  http://www.hamiltoncountyohio.gov/appealscourt/Decisions/C-050497.pdf
-  Kovac's parents called the police, who came and found Kovac highly intoxicated. They subdued him, carted him to jail, and charged him with domestic violence. Kovac had two prior domestic-violence convictions, elevating this case to a third-degree felony. He was sentenced to three years confinement. He now appeals, alleging only that his conviction was against the manifest weight of the evidence. Judgment AFFIRMED.

State v. Green (July 26, 2006)
-  http://www.hamiltoncountyohio.gov/appealscourt/Decisions/C-050556.pdf
-  Bryant E. Green, appeals the judgments entered by the Hamilton County Court of Common Pleas convicting him of aggravated robbery and felonious assault, both with firearm specifications. Green now argues that the convictions were based on insufficient evidence and were against the manifest weight of the evidence. Judgment AFFIRMED.

State v. Rogers (July 26, 2006)
-  http://www.hamiltoncountyohio.gov/appealscourt/Decisions/C-050636.pdf
-  Rogers appeals from the judgment of the Hamilton County Common Pleas Court denying his Crim.R. 32.1 motion to withdraw his guilty pleas. Judgment AFFIRMED.

State v. Taylor (July 26, 2006)
-  http://www.hamiltoncountyohio.gov/appealscourt/Decisions/C-050658.pdf
-  Petitioner-appellant Montez L. Taylor presents on appeal three assignments of error in which he challenges the Hamilton County Common Pleas Court's judgment denying his postconviction petition without a hearing. We affirm the court's judgment.

State v. Simpson (July 26, 2006)
-  http://www.hamiltoncountyohio.gov/appealscourt/Decisions/C-050798.pdf
-  Simpson filed this, his fourth postconviction petition, well after the filing date set by R.C. 2953.21(A)(2). And R.C. 2953.23 precluded the common pleas court from entertaining his tardy and successive petition, because he had neither demonstrated that he had been unavoidably prevented from discovering the facts upon which his petition depended nor predicated his claims upon a new or retrospectively applicable federal or state right recognized by the United States Supreme Court since the filing of his first petition. Judgment AFFIRMED.

Safeco Ins. Co. of America, et al. v. White, et al. (July 26, 2006)
-  http://www.hamiltoncountyohio.gov/appealscourt/Decisions/C-060360.pdf
-  Federal Insurance Company and Pacific Indemnity Company have applied for reconsideration of our June 1, 2006, order overruling their motion to dismiss this appeal. Federal and Pacific maintain that there is no final, appealable order from which plaintiff-appellant Safeco Insurance Company of America can appeal. The Court finds that Federal and Pacific's motion to reconsider is well taken. It is sustained and the motion to dismiss is granted. Furthermore, due to our decision, Safeco's motion to strike Federal and Pacific's reply memorandum is moot.

Concerned Wyoming Citizens v. City of Wyoming (July 26, 2006)
-  http://www.hamiltoncountyohio.gov/appealscourt/Decisions/C-060554.pdf
-  Defendant-appellant, City of Wyoming, appeals the judgment of the Hamilton County Court of Common Pleas denying its motion for a stay of the trial court's order enjoining the construction of a municipal swimming pool. Accordingly, we reverse the trial court's order with respect to the stay and hereby grant the City's motion for a stay of the injunction pursuant to Civ.R. 62.

*** Opinions ***

The Fifth Third Bank v. Ducru Limited Partnership (July 28, 2006)
-  http://www.hamiltoncountyohio.gov/appealscourt/Decisions/C-050564.pdf
-  The trial court properly issued a declaratory judgment favorable to the tenant on the landlord's and tenant's actions seeking a declaration concerning the tenant's right of termination under a commercial lease:  The plain and unambiguous language of the lease required the tenant to timely provide a termination notice and a promissory note as conditions precedent to its exercise of its termination right.  The tenant met these conditions.  Therefore, under the doctrine of substantial performance, its failure to timely and exactly calculate the amount of the promissory note, using a complicated formula set forth in the lease, did not nullify the termination right. Judgment AFFIRMED.

Miller v. Cincinnati Children's Hospital Medical Center & Kinman (July 28, 2006)
-  http://www.hamiltoncountyohio.gov/appealscourt/Decisions/C-050738.pdf
-  The trial court properly entered summary judgment for plaintiff's employer and her supervisor on plaintiff's complaint seeking damages for invasion of privacy for her supervisor's comments on the condition of her medically fragile granddaughter:  Plaintiff sought to recover under a theory of invasion of privacy involving an intrusion upon seclusion.  But plaintiff failed to demonstrate that her supervisor, by his comments, had intruded into a private area, when the evidence showed that plaintiff had never declined to discuss her granddaughter's condition with coworkers; that she had participated in publicizing to the community the child's heart transplant; that she had sought and had received from her employer the privilege of working at home to permit her to better assist in the child's care; and that her supervisor had acted within the scope of his supervisory duties when, in response to other employees' complaints, he had questioned her concerning her ability to care for the child and do her job. Judgment AFFIRMED.
 

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

 

Poindexter v. Mitchell (July 24, 2006) (Appeal from S.D. Ohio)
-  http://www.ca6.uscourts.gov/opinions.pdf/06a0257p-06.pdf
-  In this death penalty case, Respondent Betty Mitchell, Warden, appeals the district court's grant of habeas corpus under 28 U.S.C. § 2254 on the grounds that Petitioner Dewaine Poindexter received constitutionally ineffective assistance of counsel during the guilt and penalty phases of his capital trial. Poindexter cross-appeals the district court's denial district court's conclusion that Poindexter was deprived of his right to counsel during the guilt phase, we agree with the conclusion that Poindexter received ineffective assistance during the sentencing phase. For the following reasons, we REVERSE the district court's conditional grant of the writ in part and AFFIRM in part.

Ellis v. Cleveland Municipal (July 24, 2006) (Appeal from N.D. Ohio)
-  http://www.ca6.uscourts.gov/opinions.pdf/06a0259p-06.pdf
-  Lateasha Pendergrass, through her guardian Udine Ellis, brought various state and federal claims against the Cleveland Municipal School District (the School District) after she had a physical altercation with Janice Gibbs, her third-grade substitute teacher. Pendergrass claims that Gibbs slammed her into a chalkboard, threw her on the ground, and choked her. After the district court granted summary judgment in favor of the School District on several of Pendergrass's claims, the case went to trial on Pendergrass's claim of failure to train or supervise under 42 U.S.C. § 1983. At the close of Pendergrass's case-in-chief, however, the district court granted judgment as a matter of law in favor of the School District. Pendergrass now appeals, arguing: (1) the School District was not entitled to immunity on Pendergrass's state-law claims because Ohio's Political Subdivision Tort Liability Act violates the Ohio constitution; (2) the district court should have granted her motion to admit reports of abuse by other  teachers as a sanction; and (3) the School District was not entitled to judgment as a matter of law on her § 1983 claim of failure to train or supervise. We affirm.

Nack v. Orange City School (July 26, 2006) (Appeal from N.D. Ohio)
-  http://www.ca6.uscourts.gov/opinions.pdf/06a0262p-06.pdf
-  In this action for relief under the Individuals with Disabilities Education Act ("IDEA"), plaintiff David Nack ("Nack")1 appeals the district court's grant of summary judgment to the Orange City School District ("Orange"). Nack sued Orange for denying him a free and appropriate public education ("FAPE") because of various deficiencies with the Individualized Education Programs ("IEP") it had crafted and implemented for David. The district court concluded that none of the challenged IEPs denied David a FAPE and granted summary judgment to Orange. We affirm.
 

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

 

Blaty v. Eagle Village (July 24, 2006) (Appeal from W.D. Mich.)
-  http://www.ca6.uscourts.gov/opinions.pdf/06a0258p-06.pdf
-  This case is a civil action brought by the estate of Melva Dee Parrott (represented by Donald Blaty) against Eagle Village, Inc. and its employee, Sandy Moore. Parrott died at the age of thirteen months while in the care of Moore at Eagle Village. Blaty brings a number of causes of action against Eagle Village and Moore, including a violation of 42 U.S.C. § 1983. The district court entered default judgment against Eagle Village and Moore based on the failure of their insurance company, Frontier Insurance, to appear at a number of pretrial meetings. Frontier appeals the district court's entry of default against Eagle Village and Moore. The second appeal in this case is brought by Blaty, appealing the damages granted by the district court to the estate after the entry of default. Based upon the discussion below, this Court AFFIRMS the district court's decision in both of the appeals.

In re: Dow Corning v. (July 26, 2006) (Appeal from E.D. Mich.)
-  http://www.ca6.uscourts.gov/opinions.pdf/06a0260p-06.pdf
-  Numerous bankruptcy creditors of Dow Corning Corp., who collectively hold approximately $1 billion in commercial debt, argue that the bankruptcy court erred in only allowing claims for post-petition interest at the non-default contract rate, as identified in their debt contracts, rather than at the contracts' default rate. Dow Corning argues in a crossappeal that the bankruptcy court should have ordered the payment of post-petition interest at the non-default variable rate required by the contracts, rather than at a numerically fixed rate as of the date of the bankruptcy filing. Finally, the creditors argue that they should be awarded their attorneys' fees, costs and expenses, since Dow Corning has always been fully solvent and is still solvent post-bankruptcy. Because solvent-debtor cases present a situation where all parties ought to be granted the benefit of their bargains, unless the equities compel a contrary result, we VACATE the judgments below and REMAND for reconsideration consistent with this opinion.

Wright v. Murray Guard Inc. (July 26, 2006) (Appeal from W.D. Tenn.)
-  http://www.ca6.uscourts.gov/opinions.pdf/06a0261p-06.pdf
-  This case involves the appeal of the district court's dismissal pursuant to a motion for summary judgment of claims of race and sex discrimination on single- and mixed-motive theories brought by Cornelius Wright ("Wright"), Plaintiff-Appellant, against his employer, Murray Guard, Inc. ("Murray Guard"), Defendant- Appellee, under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2, 42 U.S.C. § 1981, and the Tennessee Human Rights Act. In addition, Wright claims that the district court erred in granting Murray Guard's request for leave to file a reply brief on its motion for summary judgment. For the reasons explained below, we AFFIRM the district court's judgment.

Washington v. Renico (July 27, 2006) (Appeal from E.D. Mich.)
-  http://www.ca6.uscourts.gov/opinions.pdf/06a0263p-06.pdf
-  Petitioner James Washington appeals the district court's order denying his habeas petition. A Michigan jury found Washington guilty of first-degree murder and possession of a firearm during the commission of a felony. He was sentenced to life in prison. On direct appeal, the Michigan Court of Appeals affirmed his convictions. Although Washington moved for and was denied an evidentiary hearing, the state appellate court denied his ineffectiveassistance- of-counsel and defense-participation claims "[b]ecause defendant failed to move for an evidentiary hearing" and because the record, as it stood, did not support his claims. The federal district court denied his habeas petition. The district court did not consider Washington's requests for an evidentiary hearing. Washington now brings four challenges that the district court certified for appeal. He argues (1) that he was denied his constitutional right to confront a testifying witness with impeaching evidence; (2) that he was denied effective assistance of counsel because counsel did not inform him that a confession barred by Miranda could be used to impeach his testimony; (3) that he could not participate in his defense when defense counsel refused Washington's request for copies of witness and police statements; and (4) that his trial was rendered fundamentally unfair when the trial court excluded certain evidence. For the following reasons, we affirm.

USA v. Whittington (July 28, 2006) (Appeal from E.D. Mich.)
-  http://www.ca6.uscourts.gov/opinions.pdf/06a0264p-06.pdf
-  Defendant-Appellant Bernard Whittington was convicted of conspiracy to distribute five grams or more of cocaine base, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B)(iii). He appeals the district court's denial of his motion in limine to exclude evidence that Whittington was found in possession of large amounts of cash and a cell phone on two separate occasions. For the reasons that follow, we AFFIRM.