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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December 21, 2007

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

TOPICS:
- Search & Seizure
- Civil Miscellaneous  Procedure/Rules
- Sentencing
- Damages
- Autos / Criminal / Instructions / O.R.C. 2941.25
- Instructions / Lesser included / Procedure / Rules / O.R.C. 2941.25 / Juries
- Constitutional Law / Criminal / Drugs / Procedure / Rules / O.R.C. 2941.25
- Real Property / Landlord & Tenant
- Workers' Compensation
- Bankruptcy law / Debtor obtaining possession of the collateral
 

Ohio Supreme Court

 

No Opinions.
 

First District Court of Appeals

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Sanden v. Cincinnati (December 21, 2007) (2007-Ohio-6866)
-  http://www.sconet.state.oh.us/rod/newpdf/1/2007/2007-ohio-6866.pdf
-  The trial court erred in granting summary judgment to a former Cincinnati police officer, and denying the city’s motion for summary judgment, on the officer’s workers’ compensation claim for posttraumatic stress disorder, when the claim, which was based solely upon the Ohio Supreme Court’s decision in Bailey v. Republic Steels, Inc., 91 Ohio St.3d 38, 2001-Ohio-236, 741 N.E.2d 121, was factually distinguishable from the employee’s claim in Bailey, in that the officer had neither witnessed nor caused the deaths of his three fellow police officers. [But, see, DISSENT: To be eligible for benefits under Bailey, the officer did not need to actually see the deaths of his fellow officers; under the tragic and extraordinary circumstances of this case, it was enough that the officer had indisputably suffered a psychological injury, and that the injury was sufficiently connected to the other officers’ work-related deaths.]
 
Cincinnati Metro. Hous. Auth. v. Edwards (December 21, 2007) (2007-Ohio-6867)
-  http://www.sconet.state.oh.us/rod/newpdf/1/2007/2007-ohio-6867.pdf
-  In an action for forcible entry and detainer brought by a public housing authority against a tenant for nonpayment of rent, the trial court erred in denying the housing authority a writ of restitution on the basis that it had incorrectly calculated the amount of the tenant’s rent by including as income the full amount of his monthly child-support payments, which were garnished from his social-security disability benefits, for purposes of determining the amount of his Section 8 rental obligation, when neither the United States Housing Act (Section 1437a et seq., Title 42, U.S.Code) nor its implementing regulations (Sections 247 et seq., 811-813, and 880 et seq., Title 24, C.F.R.), which governed the terms of the lease agreement, recognized a “dollar for dollar” exclusion or deduction for such payments from a tenant’s income, and when the term “received,” in the definition of income under Section 1437a(a)(1)(A), Title 42, U.S.Code and its accompanying regulation at Section 5.609(b)(4), Title 24, C.F.R., could reasonably be interpreted to mean that a tenant needed only to constructively receive the garnished benefits. [But, see, DISSENT: The code and regulations were obviously written by people versed in bureaucratese, with limited command of the English language: The words “actually received” should not be construed to mean “constructively received,” because actually plainly means actually*in fact, not theoretically; and if the drafters meant actual to mean constructive, they could have said so.]
 
State v. Tapplar (December 21, 2007) (2007-Ohio-6868)
-  http://www.sconet.state.oh.us/rod/newpdf/1/2007/2007-ohio-6868.pdf
-  The right of a criminal defendant to confront the witnesses against him is not violated when a confidential informant is not present at trial, and when no statements from the informant are admitted into evidence. The trial court did not abuse its discretion by denying a motion for a new trial based on the defendant’s claim that his waiver of a jury trial had not been knowing, voluntary, and intelligent: The trial court had conducted an extensive hearing prior to accepting the jury waiver and was in the best position to determine the credibility of the defendant’s assertion that trial counsel had misinformed him about his right to a jury of his peers. Convictions for drug possession and drug trafficking were properly supported by the evidence adduced at trial, when the record showed that the defendant had arranged to meet an informant and to sell him drugs, and that drugs were found in the defendant’s vehicle in an area where he had been reaching immediately prior to his arrest. Trafficking in drugs and drug possession are allied offenses of similar import: The trial court therefore erred when it separately convicted the defendant of each offense.
 
State v. Person (December 21, 2007) (2007-Ohio-6869)
-  http://www.sconet.state.oh.us/rod/newpdf/1/2007/2007-ohio-6869.pdf
-  The trial court properly denied a motion for a mistrial based on a claim that a statement had not been provided in discovery, when the statement was not admitted and the jury was instructed to disregard it. The trial court properly denied requested jury instructions for assault and negligent assault: The record did not support the conclusion that the injuries suffered by the police officer who was shot in the face were not “serious physical harm.”; and there was nothing to support the assertion that the shooting was accidental (the only evidence was that it was highly unlikely that the gun would have discharged accidentally). Felonious assault under R.C. 2903.11(A)(1) and felonious assault under R.C. 2903.11(A)(2) are not allied offenses of similar import. [But, see, DISSENT: With one gun, one shot, and one victim, there was only one felonious assault; the multiple convictions violated the defendant’s double-jeopardy rights.] The trial court properly declined to remove a juror for cause when, having admitted that he had read media accounts and formed an opinion about the case, he then stated that he would listen to both sides and follow the law as given. The trial court properly rejected a Batson challenge where the state provided the race-neutral explanation that the prospective juror had appeared hostile to the state during voir dire.
 
State v. Palmer (December 21, 2007) (2007-Ohio-6870)
-  http://www.sconet.state.oh.us/rod/newpdf/1/2007/2007-ohio-6870.pdf
-  The trial court did not err in overruling the defendant’s motion to suppress his blood-alcohol-test results because the state substantially complied with Ohio Adm.Code 3701-03-05(C): competent, credible evidence showed that a vacuum tube was used to draw the blood, and even though a gel separator rather than a solid coagulant was used, the blood was drawn according to the coroner’s laboratory protocol as written in the laboratory procedure manual. The trial court did not err in overruling the defendant’s motion to suppress his blood-alcohol-test results because the state substantially complied with Ohio Adm.Code 3701-03-05(E) and (F): the evidence showed that the defendant’s blood was kept in a sealed container that contained all the required identifying information and was properly refrigerated in both the hospital’s and the coroner’s laboratories. In a prosecution for aggravated vehicular homicide, the trial court did not err in not giving the defendant’s proposed special instruction stating that a pedestrian should not be on a highway if she is under the influence of alcohol or drugs to a degree that makes her a hazard: the evidence did not show that the victim was so under the influence of alcohol or drugs as to be a hazard, and the instruction was not pertinent since the evidence did not show that the victim’s conduct was the sole proximate cause of the accident. The trial court did not err in failing to merge separate convictions for aggravated vehicular homicide under R.C. 2903.06(A)(1)(a) and 2903.06(A)(2)(a) and in imposing consecutive sentences, because the offenses were not allied offenses of similar import. (State v. Hundley, 1st Dist. No. C-060374, 2007-Ohio-3556, followed.) [But, see, DISSENT: the defendant killed only one person in a single incident, so his separate convictions for aggravated vehicular homicide violated his double-jeopardy rights.]
 
Physicians Anesthesia Serv., Inc. v. Burt (December 21, 2007) (2007-Ohio-6871)
-  http://www.sconet.state.oh.us/rod/newpdf/1/2007/2007-ohio-6871.pdf
-  When a party challenges a liquidated-damage provision in a contract, the court must “step back and examine it in light of what the parties knew at the time the contract was formed and in light of an estimate of the actual damages caused by the breach”; where the parties have agreed upon an amount of damages in unambiguous terms, that amount is to be treated as valid liquidated damages and not as a penalty if (1) the actual damages would be uncertain as to amount and difficult to prove; (2) the contract as a whole is not so manifestly unconscionable, unreasonable, and disproportionate in amount as to indicate that it does not express the true intentions of the parties; and (3) the contract is consistent with the conclusion that the parties intended that damages in the agreed-upon amount would follow the breach of the contract. In a case involving a breached employment contract for a certified registered-nurse anesthetist that was not otherwise unreasonable or unconscionable, the trial court erred by invalidating a liquidated-damage clause when the evidence indicated that, at the time of the contract’s formation, actual damages stemming from a breach would be uncertain and difficult to prove: The evidence showed that conditions in the employment market were unstable; that there was a shortage of replacement nurse anesthetists; and that the employer would have to expend a significant but undeterminable amount of time and resources in making the appropriate arrangements for a replacement.
 
State v. Beatty (December 21, 2007) (2007-Ohio-6872)
-  http://www.sconet.state.oh.us/rod/newpdf/1/2007/2007-ohio-6872.pdf
-  The trial court erred by sentencing a second-time OVI offender to five days’ incarceration and eighteen days’ house arrest under R.C. 4511.19(G)(3), when the record did not support a finding that the local jail was overcrowded or that jail space was unavailable for the 60-day period following the imposition of sentence.
 
Roark v. Rydell (December 21, 2007) (2007-Ohio-6873)
-  http://www.sconet.state.oh.us/rod/newpdf/1/2007/2007-ohio-6873.pdf
-  The trial court’s determination that the sole shareholder of a corporation was personally liable for his participation in a civil conspiracy involving violations of the Ohio Mortgage Broker Act was not against the manifest weight of the evidence, where the shareholder had used his control over the corporation for his own personal benefit and to defraud buyers and lenders to their detriment. The trial court’s determination that a mortgage lender had participated in a civil conspiracy involving violations of the Ohio Mortgage Broker Act to defraud other lenders and borrowers was not against the manifest weight of the evidence, where the lender had overlooked obvious problems with numerous loan applications, including bogus appraisals and borrowers’ low funds on deposit. The trial court’s determination that unsophisticated borrowers had not engaged in fraud was not against the manifest weight of the evidence, where they lacked the requisite intent to commit fraud. Where a party against whom a judgment for affirmative relief was sought failed to respond to the allegations in a complaint, the trial court, under Civ.R. 8(D), should have construed those allegations as admitted, and the court erred by denying the plaintiffs’ motions for a default judgment without considering whether the admitted allegations constituted violations of the Ohio Mortgage Broker Act and civil conspiracy.
 
State v. Gunn (December 21, 2007) (2007-Ohio-6874)
-  http://www.sconet.state.oh.us/rod/newpdf/1/2007/2007-ohio-6874.pdf
-  The trial court erred in denying a defendant’s motion to suppress evidence when the defendant’s consent to a search of his person was invalid: the defendant consented to the search after he had been illegally detained, and under the totality of the circumstances, a reasonable person in the defendant’s position (in handcuffs) would not have believed that he was free to refuse consent and in fact free to leave the scene.
 

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

 

No Opinions.
 

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

 

In re: Johnson v.  (December 21, 2007) (Appeal from U.S. Bankruptcy Court - Pikeville )
-  http://www.ca6.uscourts.gov/opinions.pdf/07b0014p-06.pdf
-  In this pre-BAPCPA preference action, the trustee appeals the bankruptcy court’s ruling that the lien on the debtor’s motor vehicle was protected from avoidance by the enabling loan exception, which excepts from avoidance certain security interests perfected within 20 days of the debtor’s possession of the collateral. Although the security interest in this case was not actually perfected until it was noted on the vehicle’s certificate of title a month after the debtor obtained possession, the court concluded that the security interest was deemed perfected under Kentucky law when the creditor tendered the appropriate documents and fees to the county clerk, an act which occurred 14 days after possession. Because the majority of the Panel concludes that perfection as defined by the Supreme Court in Fidelity Financial Services, Inc. v. Fink, 522 U.S. 211, 216, 118 S. Ct. 651 (1998), occurred more than 20 days after the debtor obtained possession, the bankruptcy court’s decision is reversed.