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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November 29th and 30th, 2006

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

TOPICS:
- Attorneys at law * Misconduct
- Public records - release to inmate
- Taxation * Use tax
- Workers' compensation
- Utility companies - federally authorized charges
- Taxation - Unauthorized practice of law
- Criminal law * Right to confront witnesses
- Juvenile delinquency
- Postconviction petition
- Motion to Withdraw the Guilty Plea
- Sentencing
- ERISA
- Habeas corpus relief
- Due process and equal protection
 

Ohio Supreme Court

 

Stark Cty. Bar Assn. v. Russell (Nov. 29, 2006)(2006-Ohio-5861)
-  http://www.sconet.state.oh.us/rod/newpdf/0/2006/2006-ohio-5861.pdf
-  Attorneys * Conduct adversely reflecting on attorney's fitness to practice law * Neglecting entrusted legal matter * Initial failure to cooperate in disciplinary investigation * One-year suspension stayed on conditions.
 
Akron Bar Assn. v. Holda (Nov. 29, 2006)(2006-Ohio-5860)
-  http://www.sconet.state.oh.us/rod/newpdf/0/2006/2006-Ohio-5860.pdf
-  Attorneys * Misconduct * Multiple disciplinary violations * Public reprimand.
 
Cuyahoga Cty. Bar Assn. v. Paulson (Nov. 29, 2006)(2006-Ohio-5859)
-  http://www.sconet.state.oh.us/rod/newpdf/0/2006/2006-Ohio-5859.pdf
-  Attorneys at law * Misconduct * Conduct involving dishonesty, fraud, deceit, or misrepresentation * Conduct prejudicial to the administration of justice * Handling a legal matter without adequate preparation * Neglect of an entrusted legal matter * Failure to cooperate with a disciplinary investigation * Two-year suspension.
 
State ex rel. Russell v. Thornton (Nov. 29, 2006)(2006-Ohio-5858)
-  http://www.sconet.state.oh.us/rod/newpdf/0/2006/2006-Ohio-5858.pdf
-  Public records * Mandamus sought to compel respondent to release public records to inmate * Dismissal of complaint affirmed * Inmate failed to satisfy requirement of R.C. 149.43(B)(4) to obtain finding from sentencing judge that the information sought was necessary to support justiciable claim.
 
Satullo v. Wilkins (Nov. 29, 2006)(2006-Ohio-5856)
-  http://www.sconet.state.oh.us/rod/newpdf/0/2006/2006-Ohio-5856.pdf
-  Taxation * Use tax * Exemption under R.C. 5739.01(E) for resale not applicable * Exemption under R.C. 5741.02(C)(4) for transient use of tangible personal property not applicable.
 
Stridsberg v. GEICO Gen. Ins. Co. (Nov. 29, 2006)(2006-Ohio-5855)
-  http://www.sconet.state.oh.us/rod/newpdf/0/2006/2006-Ohio-5855.pdf
-  Appeal dismissed as improvidently accepted.
 
State ex rel. Van Gundy v. Indus. Comm. (Nov. 29, 2006)(2006-Ohio-5854)
-  http://www.sconet.state.oh.us/rod/newpdf/0/2006/2006-Ohio-5854.pdf
-  Workers' compensation * Permanent total disability compensation * R.C. 4123.57 * Industrial Commission is required to aggregate all permanent partial disability awards to determine when statutory 100 percent ceiling on awards has been reached.
 
Ohio Consumers' Counsel v. Pub. Util. Comm. (Nov. 29, 2006)(2006-Ohio-5853)
-  http://www.sconet.state.oh.us/rod/newpdf/0/2006/2006-Ohio-5853.pdf
-  Counsel v. Pub. Util. Comm. PUCO's decisions authorizing utility companies to change their accounting procedures and to defer certain federally authorized charges until after the companies' market-development periods had ended were not unreasonable or unlawful.
 
Dayton Supply & Tool Co., Inc. v. Montgomery Cty. Bd. of Revision (Nov. 29, 2006)(2006-Ohio-5852)
-  http://www.sconet.state.oh.us/rod/newpdf/0/2006/2006-Ohio-5852.pdf
-  Taxation * Complaints * Corporations * Unauthorized practice of law * Corporate office does not engage in unauthorized practice of law by preparing and filing complaint with county board of revision on behalf of corporation within certain limits * Sharon Village v. Licking Cty. Bd. of Revision distinguished.
 
State v. Holmes (Nov. 29, 2006)(2006-Ohio-5850)
-  http://www.sconet.state.oh.us/rod/newpdf/0/2006/2006-Ohio-5850.pdf
-  Appeal dismissed as improvidently accepted.
 
State v. Lee  (Nov. 29, 2006)(2006-Ohio-5849)
-  http://www.sconet.state.oh.us/rod/newpdf/0/2006/2006-Ohio-5849.pdf
-  Criminal law * Right to confront witnesses * Hearsay statement not testimonial in nature * Court of appeals' judgment affirmed on the authority of State v. Stahl.
 
In re D.S. (Nov. 29, 2006)(2006-Ohio-5851)
-  http://www.sconet.state.oh.us/rod/newpdf/0/2006/2006-Ohio-5851.pdf
-  Juvenile delinquency * Reasonableness of polygraph testing as a term of probation * Fifth Amendment rights preserved.
 

First District Court of Appeals

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*** Judgment Entries ***
 
Hodges v. Cin Steel Products Co., et al. (Nov. 29, 2006)
-  http://www.hamilton-co.org/appealscourt/Decisions/C-050533.pdf
-  Hodges suffered a work-related injury when his arm was caught in a machine. Hodges filed a workers' compensation claim.  Hodges settled his claim for $10,000. In 2003, Hodges filed a claim for workers' compensation benefits, alleging that he had contracted hepatitis C as a result of the 1986 blood transfusion necessitated by his industrial injury. The staff hearing officer concluded that the 1995 settlement agreement barred Hodges's claim. The Industrial Commission upheld the denial of Hodges's claim. Hodges appealed the Industrial Commission's decision to the common pleas court. Cin Steel and the administrator filed motions for summary judgment, alleging that the settlement agreement barred Hodges's claim. The trial court granted the motions for summary judgment. He alleges that the trial court erred in granting the motions for summary judgment. Judgment AFFIRMED.
 
State v. Pope (Nov. 29, 2006)
-  http://www.hamilton-co.org/appealscourt/Decisions/C-051005.pdf
-  Pope appeals from the denial of his postconviction petition. Judgment AFFIRMED.
 

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

 

USA v. Cousins (Nov. 30, 2006) (Appeal for N.D. Ohio)
-  http://www.ca6.uscourts.gov/opinions.pdf/06a0446p-06.pdf
-  Defendant-Appellant Clifton Cousins appeals his sentence for the crimes of threatening to harm the President of the United States and his family, arguing that the district judge violated the constitutional standard set forth in United States v. Booker, 543 U.S. 220 (2005), by incorrectly calculating the applicable Sentencing Guidelines range and by imposing an unreasonable sentence; and contending that the district court committed plain error by failing to give advance notice, as required by Federal Rule of Criminal Procedure 32(h), of its intention to impose an upward variance. For the reasons set forth below, we VACATE Cousins's sentence and REMAND this case to the district court for resentencing consistent with this opinion.
 
Hutchison v. Fifth Third Bancorp (Nov. 30, 2006) (Appeal from S.D. Ohio)
-  http://www.ca6.uscourts.gov/opinions.pdf/06a0448p-06.pdf
-  This complicated case involves a merger agreement in which Fifth Third guaranteed that the participants in Suburban Bancorporation's pre-merger employee benefit plan would receive funds from Fifth Third's general assets if certain conditions were met. Joseph H. Hutchison, suing on behalf of a class of former Suburban employees, claims that Fifth Third promised to abide by the terms of the merger agreement, induced class members to vote their shares in favor of the merger, and then breached its contract by refusing to allocate general funds to class members. Fifth Third argues that the Employee Retirement Income Security Act, 29 U.S.C. § 1001 et seq., preempts Hutchison's state law breach of contract claim because the claim "relates to" the administration of the ERISA benefit plan, and, in the alternative, that Fifth Third did not breach its contract. The district court properly held that ERISA preempts the breach of contract claim and dismissed the claim. We therefore affirm.
 
James v. Warden (Nov. 30, 2006) (Appeal from S.D. Ohio)
-  http://www.ca6.uscourts.gov/opinions.pdf/06a0449p-06.pdf
-  Respondent-appellant Anthony Brigano, Warden of the Warren Correctional Institution (the "Warden"), appeals the district court's grant of habeas corpus relief pursuant to 28 U.S.C. § 2254 to petitioner-appellee Ahmad James ("James") on his claims that (1) the state trial court failed to inquire as to the reasons for James's dissatisfaction with appointed counsel prior to trial, and (2) James's waiver of appointed counsel was not made knowingly and intelligently. Because the district court properly determined that neither of James's claims were procedurally defaulted, that it could order an evidentiary hearing, and that James's waiver of counsel was not made knowingly and intelligently, we affirm the district court's grant of habeas relief.
 

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

 

USA v. Ellis (Nov. 29, 2006) (Appeal from M.D. Tenn.)
-  http://www.ca6.uscourts.gov/opinions.pdf/06a0442p-06.pdf
-  Defendant, Bernard H. Ellis, Jr., appeals the district court's denial of a motion to withdraw his guilty plea. Defendant was convicted of manufacturing and possessing with intent to manufacture in excess of one hundred marijuana plants, in violation of 21 U.S.C. § 841(a)(1), pursuant to a guilty plea, on November 12, 2003, and sentenced on September 16, 2005, to a probation term of four years with a special condition of confinement in a community corrections center for eighteen months. For the following reasons, we AFFIRM the district court's decision.
 
USA v. Clark (Nov. 29, 2006) (Appeal from W.D. Tenn.)
-  http://www.ca6.uscourts.gov/opinions.pdf/06a0443p-06.pdf
-  Defendant-Appellant Aubrey Clark appeals his sentence for possession of cocaine with intent to distribute. Clark previously appealed his conviction and his initial sentence, and we affirmed his conviction but vacated his sentence and remanded for resentencing. Clark argues that, on remand, the district court erred by applying a reasonableness standard to determine his sentence rather than imposing a sentence sufficient, but not greater than necessary, to comply with the purposes of 18 U.S.C. § 3553(a). Because the district court gave appropriate consideration to the applicable Guidelines range, the § 3553(a) factors, and Clark's arguments for a shorter sentence, we AFFIRM Clark's sentence.
 
USA v. Jones (Nov. 29, 2006) (Appeal from E.D. Tenn.)
-  http://www.ca6.uscourts.gov/opinions.pdf/06a0444p-06.pdf
-  Richard Jones, Jr. appeals his conviction and 420-month sentence for six narcotics and weapons offenses. In this appeal, Jones challenges the District Court's decisions: 1) allowing the government to reinstate two charges from the first indictment that were dismissed pursuant to the plea agreement and 2) permitting the government to introduce Jones's FBI statement and derivative evidence at trial. We affirm the District Court on both grounds because once Jones withdrew his guilty plea, the plea agreement was nullified. Since it was no longer bound by the agreement, the government was free to indict Jones based on any lawfully obtained evidence, including the FBI statement.
 
USA v. Jackson (Nov. 30, 2006) (Appeal from W.D. Tenn.)
-  http://www.ca6.uscourts.gov/opinions.pdf/06a0445p-06.pdf
-  Defendant-appellant Michael L. Jackson appeals his jury conviction of possession with intent to distribute more than five grams of cocaine base in violation of 21 U.S.C. § 841(a)(1). Defendant raises three issues on appeal, alleging that: (1) the district court erred in denying his motion to suppress because the affidavit in support of the search warrant failed to contain sufficient indicia of the confidential informant's reliability; (2) the evidence submitted at trial regarding the weight of the cocaine was insufficient to prove that defendant possessed 5.6 grams of cocaine base as alleged in the indictment; and (3) the court erred in calculating defendant's Sentencing Guidelines range, relying upon the government's expert's mere estimation of the quantity of cocaine base possessed by defendant. For the reasons set forth below, we affirm.
 
Club Italia Soccer v. Shelby (Nov. 30, 2006) (Appeal from E.D. Mich.)
-  http://www.ca6.uscourts.gov/opinions.pdf/06a0447p-06.pdf
-  Plaintiff, ClubItalia Soccer & Sports Organization, Inc., appeals a September 6, 2005 order granting summary judgment in favor of Defendant, Charter Township of Shelby, to dismiss Plaintiff's due process and equal protection claims. Plaintiff alleges that Defendant violated the Due Process and Equal Protection Clauses of the Fourteenth Amendment as made actionable under 42 U.S.C. § 1983 by accepting a soccer complex development proposal from Soccer City, Inc. ("Soccer City") without first granting Plaintiff the opportunity to submit a bid on terms equal to those granted to Soccer City. Soccer City is a for-profit corporation engaged in the business of developing, designing, constructing, and maintaining soccer fields and facilities. The district court dismissed Plaintiff's claims for lack of standing, holding that Plaintiff did not allege an injury-in-fact because Plaintiff failed to demonstrate the existence of a protected liberty or property interest. While we find that Plaintiff did in fact have standing, we AFFIRM the order of the district court on the ground that Plaintiff failed to state a claim for relief.