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March 23, 2007

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

TOPICS:
- Sentencing - Jurisdiction / Venue
- Zoning
- New Trial - counsel - Kidnapping - Weapons- Complicity - Assault
- Attorney Fees
- Procedure / Rules - civil Miscellaneous
- Divorce and Dissoulution - Children - Res Judicata / Estoppel
- Debtor - Creditor - Bankruptcy - Discharge of indebtedness income
- Immigration - Illegal reentry - Sentencing - Jurisdiction
 

Ohio Supreme Court

 

State v. Bankhead (March 23, 2007)(2007-Ohio-1314)
-  http://www.sconet.state.oh.us/rod/newpdf/1/2007/2007-ohio-1314.pdf
-  The trial court had jurisdiction to resentence the defendant:  Although the defendant was not informed at his original sentencing hearing that he was subject to post-release control, the defendant's sentence had not expired at the time of resentencing.  State ex rel. Cruzado v. Zeleski, 111 Ohio St.3d 353, 2006-Ohio-5795, 856 N.E.2d 263, followed. The trial court had jurisdiction under newly-enacted R.C. 2929.191(A) to conduct a hearing and to there notify the defendant, who had not previously been notified, that he was subject to post-release control upon his release from prison:  The statute is remedial and thus applies retroactively to defendants convicted of offenses that occurred before the statutes's effective date. Judgment AFFIRMED.
 
Pupco Property Mgt. v. Cincinnati (March 23, 2007)(2007-Ohio-1315)
-  http://www.sconet.state.oh.us/rod/newpdf/1/2007/2007-ohio-1315.pdf
-  The trial court abused its discretion by reversing a decision of the city's board of zoning appeals, which had revoked a permit allowing a tavern to construct a patio with an awning:  The addition did not qualify as an outdoor dining area under the city's zoning code because the tavern derived almost all of its revenue from the sale of alcoholic beverages.  And because the addition was not enclosed, it was an outdoor drinking area that was prohibited on the property as it was zoned. Judgment REVERSED and Final Judgment Entered.
 
State v. Mincy (March 23, 2007)(2007-Ohio-1316)
-  http://www.sconet.state.oh.us/rod/newpdf/1/2007/2007-ohio-1316.pdf
-  The trial court did not abuse its discretion by denying a Crim.R. 33(A)(6) motion for a new trial where the newly discovered evidence consisted of an admission by an accomplice that he, and not a co-defendant convicted following a joint trial with the defendant, had been the defendant's accomplice in the commission of the offenses:  the evidence did not disclose a strong probability that it would have changed the result if a new trial was granted, because the accomplice's admission was largely inculpatory of the defendant, and because, given the accomplice's less-than-credible explanation that the gun he had wielded was merely a toy, the trial court reasonably concluded that the admission would not have caused the court to acquit the defendant. [But, see, DISSENT:  The defendant was entitled to a new trial when the record showed that he had been convicted, under a theory of complicity, of aiding and abetting the wrong person, a person who had not even been at the crime scene, and when the real principal offender, who was later apprehended and confessed, was the only person who had possessed or touched the alleged firearm, which may have been only a toy gun.] Judgment AFFIRMED in part, REVERSED and Appellant discharged in part.
 
Hamilton Cty. Bd. of Commrs. v. OTR (March 23, 2007)(2007-Ohio-1317)
-  http://www.sconet.state.oh.us/rod/newpdf/1/2007/2007-ohio-1317.pdf
-  In an appropriation action, the trial court did not exceed its subject-matter jurisdiction when it restricted the jury's valuation to property rights previously adjudicated by the court of appeals to have been appropriated. In an appropriation action, the trial court properly admitted evidence concerning a loss of parking and a loss of traffic flow through the appropriated property as relevant to a fair-market-value calculation:  The losses were not shared in common with the general public, were unique to the property owner, and would be relevant considerations to an ordinarily prudent businessperson. In an appropriation action, the trial court properly declined to instruct the jury that damages suffered by the property owner in common with the public could not be recovered:  Although the instruction contained a correct statement of the law, it was inapplicable to the facts of the case. In an appropriation action, the trial court properly declined to reduce an award of damages by the "cost of cure," i.e., the cost to restore the property's fair-market value, because the "cost of cure" could not be established without going outside of the property owner's premises. A court of appeals will not disturb an award of damages in an appropriation action that is supported by competent, credible evidence. Judgment AFFIRMED.
 
Burdge v. Supervalu Holdings, Inc.(March 23, 2007)(2007-Ohio-1318)
-  http://www.sconet.state.oh.us/rod/newpdf/1/2007/2007-ohio-1318.pdf
-  The trial court properly entered summary judgment for defendant on plaintiff's claim seeking statutory damages and attorney fees under Ohio's credit-card-truncation statute, R.C. 1345.18:  Defendant violated the statute when it provided plaintiff with electronically printed receipts displaying his credit card's expiration date.  But plaintiff could not recover under the statute, because he was not actually injured by defendant's statutory violation. Defendant was entitled to an award of attorney fees and costs associated with plaintiff's appeal of the entry of summary judgment for defendant on his complaint seeking damages for defendant's alleged violation of Ohio's credit-card-truncation statute, R.C. 1345.18:  The appeal was frivolous because plaintiff did not present a reasonable question for review, and plaintiff's attorney had no good ground to support the appeal.  App.R. 23; Civ.R. 11. Judgment AFFIRMED and Sanctions Awarded.
 
Beckler v. Bacon (March 23, 2007)(2007-Ohio-1319)
-  http://www.sconet.state.oh.us/rod/newpdf/1/2007/2007-ohio-1319.pdf
-  The trial court erred in granting summary judgment for defendant on plaintiff's complaint to recover the reasonable value of his services for personal care and home maintenance plaintiff provided defendant's decedent:  Summary judgment for defendant was inappropriate on the ground that the complaint had been filed after the two-month time period set forth in R.C. 2117.12, because genuine issues of material fact remained as to the date defendant had delivered and plaintiff had received defendant's letter rejecting plaintiff's claim against the decedent's estate; and summary judgment for defendant was inappropriate on plaintiff's claim in quantum meruit, because the complaint set forth a claim for equitable relief and an amount for the value of plaintiff's services, and the claim was supported by the depositions of plaintiff and his wife. Judgment REVERSED and Cause REMANDED.
 
Sapinsley v. Sapinsley (March 23, 2007)(2007-Ohio-1320)
-  http://www.sconet.state.oh.us/rod/newpdf/1/2007/2007-ohio-1320.pdf
-  The domestic relations court erred in dismissing wife's motion to modify child support: A change in circumstances was shown, when the amount of the actual annual obligation reflected on line 23a of the new child-support worksheet was ten percent more than the amount of child support listed on line 25 of the original worksheet. R.C. 3119.79(A). On appeal from the dismissal of a motion to modify child support, the doctrine of res judicata barred wife's claim that the domestic relations court had imputed income to her in contravention of the R.C. 3119.01(C)(11) guidelines: The court of appeals had addressed and rejected this claim in an earlier appeal. In proceedings upon wife's motion to modify child support, the domestic relations court erred in failing to include in husband's gross income the car allowance he received from his employer. R.C. 3119.01(C)(7). In proceedings upon wife's motion to modify child support, the domestic relations court erred when it deviated from the child-support amount called for under the statutory guidelines without hearing evidence or making the findings required by R.C. 3119.24 and 3119.23. Judgment REVERSED and REMANDED.
 

First District Court of Appeals

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

 

Alpert v. USA (March 23, 2007) (Appeal from N.D. Ohio)
-  http://www.ca6.uscourts.gov/opinions.pdf/07a0111p-06.pdf
-  Appellants Martin and Carolyn Alpert appeal the district court's grant of summary judgment to appellee United States because the Alperts failed to present evidence of an essential element of their claim for refund of overpaid taxes. The Alperts argue that they have presented sufficient evidence to create a disputed issue of material fact as to when the debts of their wholly-owned subchapter S corporation were discharged in bankruptcy. For the reasons stated below, we affirm the decision of the district court.
 

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

 

USA v. Trejo-Martinez (March 23, 2007) (Appeal from W.D. Ky.)
-  http://www.ca6.uscourts.gov/opinions.pdf/07a0112p-06.pdf
-  Defendant-appellant Ramiro Trejo-Martinez ("Trejo") appeals the sentence imposed by the district court for his illegal reentry into the United States following deportation in violation of 8 U.S.C. § 1326(a), (b)(2). The government argues that we are without jurisdiction to hear Trejo's appeal because the district court imposed a sentence within the now advisory guidelines and Trejo does not challenge the district court's underlying guidelines calculations. As the government notes, we have not, as yet, identified explicitly the jurisdictional basis for our review of sentences imposed within a correctly calculated guidelines range. We hold today that in light of United States v. Booker, 543 U.S. 220 (2005), 18 U.S.C. § 3742(a) provides the necessary jurisdiction for our review of Trejo's sentence. Accordingly, we reject the government's argument that we are without jurisdiction to hear the instant appeal. However, because we further conclude that the sentence imposed by the district court was reasonable, we affirm the decision of the district court.
 

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