Daily Case Update Archive

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April 20, 2007

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

TOPICS:
- Wills and Trusts
- Attorneys Fees
- ERISA - lump-sum distributions- whipsaw caluculation
- Evidence
- Jury Instructions - special unanimity
 

Ohio Supreme Court

 

No Opinions.
 

First District Court of Appeals

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State ex rel.  Petro v. City of Cincinnati (April 20, 2007)(2007-ohio-1858)
-  http://www.sconet.state.oh.us/rod/newpdf/1/2007/2007-ohio-1858.pdf
-  The attorney general is a "person" for purposes of a declaratory-judgment action under to R.C. Chapter 2721. R.C. 109.24 empowers the attorney general to institute an action involving a charitable trust and to bring the action in his own name or in the name of the state. In an action involving a charitable trust that had operated a cemetery, the attorney general properly joined all necessary parties: it was not necessary to name all the plot holders and relatives of the deceased, because the attorney general represented the trust's beneficiaries. Because the trial court's determination that a cemetery was a public cemetery not owned or under the care of a corporation was supported by competent, credible evidence, the court properly concluded that, pursuant to R.C. 759.08, title to the cemetery was vested in the city in which the cemetery was located.

Olivas v. Cincinnati Public Schools (April 20, 2007)(2007-ohio-1857)
-  http://www.sconet.state.oh.us/rod/newpdf/1/2007/2007-ohio-1857.pdf
-  The trial court erred when it refused to dismiss the plaintiff's claims for declaratory judgment, injunctive relief, and damages under Section 1400 et seq., Title 20, U.S.Code and R.C. 3323.01 et seq.: Because the plaintiff did not demonstrate that pursuit of her administrative remedies would have been futile or would have irreparably harmed her son, the requirement that she exhaust the administrative remedies should have been enforced. The trial court properly considered the plaintiff's request for attorney fees and costs, but the fees and costs should have been limited to those related to the administrative process and to those that were incurred prior to the school board's settlement offer.
   

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

 

West v. AK Steel Corporation (April 20, 2007) (Appeal from S.D. Ohio)
-  http://www.ca6.uscourts.gov/opinions.pdf/07a0143p-06.pdf
-  This is a class action lawsuit brought by early retirees in the AK Steel Corporation Retirement Accumulation Pension Plan (AK Steel Plan) who elected to receive their pension benefits under the Plan in the form of a lump-sum payment. The AK Steel Plan is a cash balance plan specifying that participants can elect to receive a lump sum equal to their "account balance" at the termination of employment rather than having to wait until they reach the normal retirement age of 65. According to the plaintiffs, the AK Steel Plan's failure to use what is known as the "whipsaw calculation" when determining the value of the lump-sum distributions for these early retirees caused a forfeiture of benefits in violation of the Employment Retirement Income Security Act (ERISA). The district court, in April of 2004, granted partial summary judgment in favor of the plaintiffs on the issue of liability. A year and a half later, the district court awarded the plaintiffs over $37 million in damages and more than $9 million in prejudgment interest. AK Steel timely appealed. For the reasons set forth below, we AFFIRM the judgment of the district court.
 

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

 

USA v. Graham and USA v. Dresbach (April 20, 2007) (Appeal from E.D. Mich)
-  http://www.ca6.uscourts.gov/opinions.pdf/07a0141p-06.pdf
-  The criminal defendants in this appeal contend that the failure of the Government's cooperating witness to produce fifteen boxes of evidence until late in the trial constituted a violation of Brady v. Maryland, 373 U.S. 83 (1963). Defendants Kenneth Graham and Kyle Dresbach were convicted of conspiracy to commit mail fraud and to file false tax returns, conspiracy to commit money laundering, money laundering, and subscribing false tax returns. These charges were based on a kickback scheme in which the defendants caused Thyssen, Inc., a steel was funneled back to the defendants through shell entities created by their attorney, Jerome Allen. Allen was an unindicted co-conspirator who acted as a cooperating witness for the Government pursuant to a plea agreement. Near the end of the defendants' trial, Allen produced fifteen boxes of documents, some of which pertained to his representation of Graham. Graham and Dresbach argue that the district court erred by failing to find that the Government violated its obligations under Brady by not causing these documents to be produced earlier. The Government responds that these documents were not material under Brady and that there was no violation of Brady because the evidence was in the exclusive control of a cooperating witness and not the Government. Dresbach also raises issues involving alleged ineffective assistance of counsel, improper failure to sever the two cases, and error in the giving of a supplemental jury instruction after the jury had indicated that it had reached a verdict. Because the cooperating witness here was not acting on behalf of the Government, and the defendants' other contentions do not warrant reversal, the convictions of both defendants are affirmed.

USA v. Kakos (April 20, 2007) (Appeal from E.D. Mich)
-  http://www.ca6.uscourts.gov/opinions.pdf/07a0142p-06.pdf
-  Defendant Frederick Kakos appeals his conviction for the interstate receipt of stolen property pursuant to 18 U.S.C. § 2315. Defendant was charged, in a single count indictment, with knowingly receiving a stolen trailer and the stolen meat contained within that trailer. On appeal, Defendant argues that the indictment was duplicitous, thereby compromising his right to a unanimous jury verdict, and that the district court committed plain error by failing to give the jury a special unanimity instruction which would have eliminated any such prejudice. For the reasons that follow, we AFFIRM Defendant's conviction.
 

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