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 or 2006.

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January 30 &31, 2008

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

TOPICS:
- Use tax
- Motion to dismiss
- Motion for reconsideration
- Attorneys at law * Misconduct
- Ohio Consumer Sales Practice Act
- Home-rule authority
- Post-conviction petition
- Sexual-offender-classification
- Evidence - Insuffient - Manifest weight / Sentencing
- Sentencing
- Workers' Compensation / Lack of Subject-matter jurisdiction
- Carriage of Goods by Sea Act / Hague-Visby Rules
- Immigration / Petition to review decision
- Prosecutorial Misconduct / Motion to Suppress
- Age Discrimination in Employment Act
- National Labor Relations Act / Union Dues
- Immigration / Convention Against Torture
- Immigration / Petition for review / Notice untimely / Mailbox rule
 

Ohio Supreme Court

 

*** Slip Opinion ***
 
DaimlerChrysler Corp. v. Levin (January 30, 2007) (2008-Ohio-259)
-  http://www.sconet.state.oh.us/rod/newpdf/0/2008/2008-ohio-259.pdf
-  Use tax * Owner of vehicle is the “consumer” for use-tax purposes of repair services and repair parts for goodwill repairs, which are repairs paid for by the manufacturer after the warranty has expired * Owner paid for the goodwill repairs at time of purchase of the vehicle because the anticipated cost of goodwill repairs was incorporated in the price of the vehicle.
 
State ex rel. Mosier Indus. Servs. Corp. v. Indus. Comm. (January 30, 2007) (2008-Ohio-260)
-  http://www.sconet.state.oh.us/rod/newpdf/0/2008/2008-ohio-260.pdf
-  On motion to dismiss.
 
State v. Osborne (January 30, 2007) (2008-Ohio-261)
-  http://www.sconet.state.oh.us/rod/newpdf/0/2008/2008-ohio-261.pdf
-  Motion for reconsideration granted.
 
Blackwell v. Moore (January 30, 2007) (2008-Ohio-262)
-  http://www.sconet.state.oh.us/rod/newpdf/0/2008/2008-ohio-262.pdf
-  Judgment affirmed.
 
Columbus Bar Assn. v. Shea (January 30, 2007) (2008-Ohio-260)
-  http://www.sconet.state.oh.us/rod/newpdf/0/2008/2008-ohio-260.pdf
-  Attorneys at law * Misconduct * Conduct involving dishonesty, fraud, deceit, or misrepresentation * Conduct adversely reflecting on the lawyer's fitness to practice law * Failure to disclose lack of professional liability insurance * Public reprimand.
 
Mendenhall v. Akron (January 31, 2007) (2008-Ohio-270)
-  http://www.sconet.state.oh.us/rod/newpdf/0/2008/2008-ohio-270.pdf
-  Home-rule authority * Traffic-law enforcement * Civil sanctions * An Ohio municipality does not exceed its home-rule authority when it creates an automated system for enforcement of traffic laws that imposes civil liability upon violators, provided that the municipality does not alter statewide traffic regulations.
 
Reagans v. MountainHigh Coachworks, Inc. (January 31, 2007) (2008-Ohio-271)
-  http://www.sconet.state.oh.us/rod/newpdf/0/2008/2008-ohio-271.pdf
-  Ohio Consumer Sales Practice Act * R.C. 1345.01 et seq. * Notice mandated by Section 433, Title 16, C.F.R. to appear in a consumer credit contract limits a consumer’s recovery from a creditor to the amount the consumer actually paid under the contract * Section 433, Title 16, C.F.R. does not entitle the buyers to set off against their outstanding loan balance their judgment against the seller for treble damages and attorney fees under the Ohio Consumer Sales Practices Act.
 

First District Court of Appeals

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*** Judgment Entries ***
 
State of Ohio vs. Jamin Mitchell (January 30, 2007)
-  http://www.hamilton-co.org/cinlawlib/resources/cases/firstdistrict/2006/C-060514_01302008.pdf
-  Mitchell was convicted upon guilty pleas to five counts of aggravated robbery and a single count of aggravated burglary. The trial court sentenced him to a prison term of ten years on each count and ordered that the terms be served consecutively. He challenges (1) the sentences imposed upon his guilty pleas to aggravated robbery and aggravated burglary, and (2) the denial of his postconviction petition. Judgment AFFIRMED.
 
State of Ohio vs. Arvil Davenport (January 30, 2007)
-  http://www.hamilton-co.org/cinlawlib/resources/cases/firstdistrict/2007/C-070092_01302008.pdf
-  Davenport was convicted of aggravated burglary and two counts of rape, all with firearm specifications. He was also convicted of attempted rape. Davenport was sentenced to 33 to 75 years’ incarceration. Davenport was returned to Hamilton County for a sexual-offender-classification hearing. The trial court found Davenport to be a sexual predator. He alleges that the trial court’s finding that he was a sexual predator was against the manifest weight of the evidence. Judgment AFFIRMED.
 
State of Ohio vs. Cuevas Brown (January 30, 2007)
-  http://www.hamilton-co.org/cinlawlib/resources/cases/firstdistrict/2007/C-070124_01302008.pdf
-  Brown was convicted of burglary, domestic violence, and abduction. Brown was sentenced to four years’ incarceration for the burglary, four years’ incarceration for the domestic violence, and three years’ incarceration for the abduction. The sentences for burglary and domestic violence were to run consecutively, and the sentence for abduction was to run concurrently, for an aggregate sentence of eight years’ incarceration. Brown argues that (1) his convictions were based upon insufficient evidence, (2) his convictions were against the manifest weight of the evidence, and (3) his sentences were contrary to law because they were excessive. Judgment AFFIRMED.
 
State of Ohio vs. Curtis Alshahid (January 30, 2007)
-  http://www.hamilton-co.org/cinlawlib/resources/cases/firstdistrict/2007/C-070135_01302008.pdf
-  Alshahid was convicted of three counts of burglary, all felonies of the second degree. He was sentenced to three three-year consecutive terms. On appeal, this court reduced one burglary count to a felony of the third degree and remanded all counts for resentencing under State v. Foster. The trial court held a new sentencing hearing and again imposed three three-year consecutive terms, for an aggregate term of nine years. He alleges taht the trial court erred in imposing the same sentences after a successful appeal that had resulted in a reduction of one of the charges and the trial court improperly sentenced him to consecutive terms of imprisonment.  Judgment AFFIRMED.
 
State of Ohio vs. Rodney French (January 30, 2007)
-  http://www.hamilton-co.org/cinlawlib/resources/cases/firstdistrict/2007/C-070235_01302008.pdf
-  French was convicted of eight counts of felonious assault with firearm specifications, felonies of the second degree. French was sentenced to seven years’ incarceration on each of four counts and to three years’ incarceration on the accompanying firearm specifications. All sentences were to run consecutively, for an aggregate term of 40 years. On appeal, we held that the trial court had erred in imposing more than one mandatory three-year term for the firearm specifications and remanded the case for resentencing. The court then imposed a sentence of seven years’ incarceration on each of four felonious-assault counts and three years’ incarceration on one firearm specification, for an aggregate sentence of 31 years. French now argues that his sentences were contrary to law because they were excessive.  Judgment AFFIRMED.
 
Jerry Angel vs. William E. Mabe, Administrator - Ohio Bureau of Workers' Compensation, et al. (January 30, 2007)
-  http://www.hamilton-co.org/cinlawlib/resources/cases/firstdistrict/2007/C-070319_01302008.pdf
-  Angel had been injured in the course of his employment in 1989, and as a result, he had prevailed on a workers’ compensation claim. The Industrial Commission denied Angel’s request. Angel appealed to the court of common pleas. Concluding that Angel’s claim concerned the extent of his participation, and not his right to participate, in the workers’ compensation system, the trial court dismissed his complaint. Angel argues that the trial court erred in dismissing his complaint for lack of subject-matter jurisdiction and because the decision of the Industrial Commission was ambiguous and failed to state the nature of the intervening trauma, the trial court should have required the Industrial Commission to clarify its decision and should not have dismissed his complaint. Judgment AFFIRMED.
 

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

 

No Opinions.
 

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

 

Royal Ins Co v. Orient Overseas (January 30, 2008) Appeal from E.D. MI
-  http://www.ca6.uscourts.gov/opinions.pdf/08a0053p-06.pdf
-  Ford and its cargo insurer, Royal brought this action against OOCL, an ocean carrier, for damages arising from the loss of cargo during a transatlantic voyage. OOCL impleaded Third-Party Defendants-Appellees M/V Canmar Pride, the carrying vessel; CP Ships (UK) Ltd.; CPS No. 3 Ltd.; and CPS No. 5 Ltd. (collectively, “Third-Party Appellees”). On September 29, 2005, the district court granted partial summary judgment for OOCL and Third-Party Appellees, ruling that Appellants’ claims were subject to the $500-perpackage liability limitation prescribed by the Carriage of Goods by Sea Act (“COGSA”), 46 U.S.C. § 30701 et seq. Both the district court and this court authorized an interlocutory appeal of that ruling, and Appellants now argue that the district court’s ruling should be reversed. For the reasons set forth below, we REVERSE the judgment of the district court and REMAND this case for further proceedings consistent with this opinion.
 
Demjanjuk v. Mukasey (January 30, 2008) Appeal from Immigration & Naturalization Service
-  http://www.ca6.uscourts.gov/opinions.pdf/08a0054p-06.pdf
-  Demjanjuk seeks review of the decision of the Board of Immigration Appeals holding that the Chief Immigration Judge was authorized to preside over Demjanjuk’s removal proceeding. Pursuant to 8 U.S.C. § 1229a, a removal proceeding must be conducted by an immigration judge. Demjanjuk contends that the Chief Immigration Judge cannot be considered an immigration judge, and thus lacked authority to order Demjanjuk’s removal from the United States. The Chief Immigration Judge, however, clearly meets the statutory definition of “immigration judge.” Accordingly, we deny the petition for review.
 
USA v. Davis (January 30, 2008) Appeal from E.D. TN
-  http://www.ca6.uscourts.gov/opinions.pdf/08a0055p-06.pdf
-  A jury found Davis guilty of possession with intent to distribute cocaine base, in violation of 21 U.S.C. § 841(a)(1), and possession with intent to distribute cocaine base within 1,000 feet of a public school, in violation of 21 U.S.C. §§ 860(a), 841(a)(1), and 841(b)(1)(C). The district court sentenced Davis to imprisonment for 240 months and 262 months, respectively; the district court determined that the terms would run concurrently. On appeal, Davis argues that the district court erred by denying his motion to suppress drugs found during his arrests on March 9, 2005 and August 24, 2005. Also, he appeals the district court’s denial of his motion to exclude two expert witnesses at his trial, and the denial of his motion for a mistrial based on prosecutorial misconduct. Finally, for the first time on appeal, Davis objects to three statements made by the government during trial, which he alleges constitute prosecutorial misconduct. For the following reasons, we AFFIRM the district court’s judgment.
 
Mickey v. Zeidler Tool & Die (January 31, 2008) Appeal from E.D. MI
-  http://www.ca6.uscourts.gov/opinions.pdf/08a0056p-06.pdf
-  Mickey appeals the district court’s grant of summary judgment on his claims brought under the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621 et seq., and Michigan’s Elliott-Larsen Civil Rights Act (“ELCRA”), MICH. COMP. LAWS §§ 37.2101 et seq. Mickey’s lawsuit advances two claims: (1) that Zeidler Tool & Die Company (“Zeidler”), his employer, and Harold DeForge, the sole owner of Zeidler, discriminated against him on the basis of age in reducing his salary and benefits, and in terminating him; and (2) that Zeidler terminated him in retaliation for filing a charge of age discrimination with the Equal Employment Opportunity Commission (“EEOC”). The district court held that Mickey failed to establish a prima facie case of age discrimination, finding that Mickey had not shown that he was replaced by a significantly younger person. Although Zeidler terminated Mickey immediately upon receiving notice of his EEOC complaint, the district court also concluded that Mickey failed to establish a prima facie case of retaliation because he was unable to show a causal connection between his protected activity and his termination. Finally, the district court found that, even if Mickey had established a prima facie claim of retaliation, Zeidler offered legitimate, non-discriminatory business reasons for terminating Mickey and that Mickey failed to demonstrate that those reasons were a pretext for discrimination. For the reasons discussed below, we AFFIRM the district court’s grant of summary judgment to Zeidler on Mickey’s age discrimination claims; REVERSE the district court’s grant of summary judgment to Zeidler on Mickey’s retaliation claims; and REMAND the case for further proceedings consistent with this opinion.
 
NLRB v. Intl Brotherhood (January 31, 2008) Appeal from National Labor Relations Board
-  http://www.ca6.uscourts.gov/opinions.pdf/08a0057p-06.pdf
-  This matter is before us on the NLRB’s petition to enforce its order holding that the International Brotherhood of Electrical Workers, Local 429 (“IBEW” or “Union”), and an apprenticeship committee, retaliated against an apprentice for being delinquent in paying his union dues and for expressing anti-union views. The Union and apprenticeship committee crossappealed, seeking review of the NLRB’s order. For the reasons stated below, we remand to the NLRB for further consideration and articulation of its conclusion that the apprenticeship committee acted as an agent of the Union.
 
Al-Najar v. Mukasey  (January 31, 2008) Appeal from Immigration & Naturalization Service
-  http://www.ca6.uscourts.gov/opinions.pdf/08a0058p-06.pdf
-  Al-Najar appeals from a decision of the BIA affirming the IJ opinion that Al-Najar failed to meet his burden of proof for establishing eligibility for asylum, withholding of removal, and protection under the Convention Against Torture, and holding that Al-Najar was eligible for removal due to a 2002 Michigan state conviction for possession of a controlled substance. Al-Najar argues that he is not subject to removal because his prior conviction did not in fact involve a controlled substance and because his plea of guilty was withdrawn and his conviction vacated. Al-Najar argues further that the IJ abused its discretion in declining to continue Al-Najar’s case, the IJ breached a duty to inform Al-Najar that he was eligible for relief under Immigration Nationality Act § 212(h), 8 U.S.C. § 1182, he was entitled to voluntary departure, and he had demonstrated that he was qualified for asylum, withholding of removal, and withholding under the Convention Against Torture (“CAT”). The government urges us to remand to the BIA so that the agency may determine whether Al-Najar’s conviction for possession of khat constitutes possession of a controlled substance. In the alternative, the government argues that Al-Najar may not collaterally attack his state conviction; the BIA found correctly that petitioner’s conviction applied for immigration purposes; this court lacks jurisdiction to consider Al-Najar’s requests for continuance and voluntary departure; the IJ did not err in failing to provide petitioner the opportunity to apply for a § 212(h) waiver; and Al-Najar has waived review of the denial of his petition for asylum, withholding of removal, and withholding under the CAT. Al-Najar opposes a remand. For the reasons stated below, we hold that a remand is unnecessary because Al-Najar’s challenge to his Michigan state court conviction constitutes an impermissible collateral attack. Because Al-Najar presents no other claims that would entitle him to relief, we deny the petition for review.
 
Vasquez Salazar v. Mukasey (January 31, 2008) Appeal from Immigration & Naturalization Service
-  http://www.ca6.uscourts.gov/opinions.pdf/08a0059p-06.pdf
-  Salazar petitions for review of the Board order that denied his motion for reconsideration of a previous order, issued October 2, 2006, dismissing his appeal as untimely. The Board’s October 2006 order affirmed an Immigration Judge’s decision that denied his application for asylum and withholding of deportation. The parties have waived oral argument and this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).
 

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