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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March 5 - 7, 2008

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

TOPICS:
- Prohibition – Public utility
- Workers’ compensation
- Habeas corpus
- Attorneys – Character and fitness
- Child custody
- Writ of mandamus
- Jail-time credit
- Courts — Judicial immunity
- Statute of limitations
- Utilities – Telephone service
- Attorneys at law — Misconduct
- State Teachers Retirement System
- Search & Seizure / Probable cause
- Motion to Suppress / Constitutionality / Ineffective Counsel
- Self-Defense / Assault
- Slip and Fall / Natural accumulation
- Criminal Rule 11 / Pleas / Rights upon pleas
- Sentencing / Evidence / Sexual Predator classification
- Petition for postconviction relief
- Sentencing / Statutory range
- Evidence / credibility of the witnesses
- Motion for a new trial
- Family Law / Child custody / Best interest of the child
- Due process / Cincinnati Municipal Code - Appeals
- Sexually-oriented offender failure
- Homicide / Evidence / Prosecutor / Constitutional Law
- Appeallate Review / Civil / Contracts
- Election / signatures / payment / First Amendment
- Securities Act
- Qualified immunity
- Civil Rights Act / Age Discrimination in Employment Act
- Attorney's Fees / Longshore and Harbor Workers’ Compensation Act
 

Ohio Supreme Court

 

State ex rel. Cunningham v. Reed (Slip Opinion) (March 5, 2008)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2008/2008-ohio-855.pdf
-  Appeal from dismissal of a petition for a writ of prohibition – Judgment affirmed.

State ex rel. Ridenour v. Brunsman (Slip Opinion) (March 5, 2008)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2008/2008-ohio-854.pdf
-  Appeal from dismissal of a petition for a writ of mandamus – Judgment affirmed.

Rosen v. Celebrezze (Slip Opinion) (March 5, 2008)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2008/2008-ohio-853.pdf
-  Child custody—Jurisdiction—Uniform Child Custody Jurisdiction and Enforcement Act—Definition of “home state”—R.C. 3127.01(B)(7)—Writ of prohibition granted.

In re Application of Creighton (Slip Opinion) (March 5, 2008)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2008/2008-ohio-852.pdf
-  Attorneys – Character and fitness – Applicant lacks requisite fitness, character, and moral qualifications for admission to bar because he engaged in inappropriate relationship with teenage student while he was her teacher and failed to disclose on his law-school application and bar-admission application that he had been disciplined for this conduct – Application for admission disapproved – Applicant may apply to take the July 2009 bar exam but must submit favorable psychological assessment with his application.

Manns v. Gansheimer (Slip Opinion)  (March 5, 2008)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2008/2008-ohio-851.pdf
-  Habeas corpus — Alleged sentencing errors — Adequate remedies at law — App.R. 12(A)(1)(a) — Judgment affirmed.

State ex rel. Lapp Roofing & Sheet Metal Co., Inc. v. Indus. Comm. (Slip Opinion)  (March 5, 2008)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2008/2008-ohio-850.pdf
-  Workers’ compensation — Industrial Commission — R.C. 4123.511 notice requirements — Substantial compliance — Judgment affirmed.

State ex rel. Columbus S. Power Co. v. Fais (Slip Opinion) (March 5, 2008)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2008/2008-ohio-849.pdf
-  Prohibition – Public utility – Writ to prevent common pleas judge from proceeding to determine matter of liability for utility’s cost in relocating overhead power lines underground when relocation ordered by municipality – Issue of liability already set in Public Utilities Commission tariff – Commission has exclusive jurisdiction – Writ granted.

State ex rel. Ackerman v. State Teachers Retirement Bd. (Slip Opinion) (March 6, 2008)
-  http://www.008/2008-ohio-863.pdf
-  State Teachers Retirement System—Disability retirement—Termination of benefits on basis of medical examination—R.C. 3307.64—Authority to convene panel of medical review board —Multiple examinations—Disagreement with conclusions of examining physician—Abuse of discretion not shown.

Akron Bar Assn. v. Markovich (Slip Opinion) (March 6, 2008)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2008/2008-ohio-862.pdf
-  Attorneys at law — Misconduct — Multiple violations of Disciplinary Rules — One-year suspension with six months stayed on conditions.

Ohio Consumers' Counsel v. Pub. Util. Comm. (Slip Opinion) (March 6, 2008)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2008/2008-ohio-861.pdf
-  Utilities – Telephone service – Alternative regulation – R.C. 4927.02, .03, and .04 – Requirements for establishing eligibility for alternative regulation – Ohio Adm.Code 4901:1-4-10(C)(3) and (4) – Adequacy of commission’s test for eligibility in implementing statutory requirements — Bundled offerings may be considered in determining whether applicant is “subject to competition” when applicant offers only stand-alone service – “Qualified alternative providers” may include providers who serve only portion of exchange – Commission’s reliance on “presence” of alternative providers to test competitive market not unreasonable – Access line loss is reasonable indicator that applicant is “subject to competition” and that customers have “reasonably available alternatives” – Lack of “barriers to entry” may be shown by evidence of lack of significant barriers – Commission’s rules impose reasonable requirements for showing of requisite public interest.

Ohio Consumers' Counsel v. Pub. Util. Comm. (Slip Opinion) (March 6, 2008)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2008/2008-ohio-860.pdf
-  Utilities – Telephone service – Alternative regulation – R.C. 4927.02, .03, and .04 – Requirements for establishing eligibility for alternative regulation – Ohio Adm.Code 4901:1-4-10(C)(4) – Adequacy of commission’s test for eligibility in implementing statutory requirements – Bundled offerings may be considered in determining whether applicant is “subject to competition” when applicant offers only stand-alone service – “Qualified alternative providers” may include providers who serve only portion of exchange – Commission’s reliance on “presence” of alternative providers to test competitive market not unreasonable – Access line loss is reasonable indicator that applicant is “subject to competition” and that customers have “reasonably available alternatives” – Lack of “barriers to entry” may be shown by evidence of lack of significant barriers – Commission’s rules impose reasonable requirements for showing of requisite public interest.

Sexton v. Mason (Slip Opinion) (March 6, 2008)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2008/2008-ohio-858.pdf
-  Statute of limitations — Damage to real property — Permanent trespass occurs when defendant’s allegedly tortious act has been fully accomplished.

Borkowski v. Abood (Slip Opinion) (March 6, 2008)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2008/2008-ohio-857.pdf
-  Courts — Judicial immunity — A judge is exempt from civil liability even if the judge exceeds his or her authority and acts in excess of jurisdiction when the judge has acted in an official judicial capacity and has personal and subject-matter jurisdiction over the controversy — Actions taken by a judge in the interval between filing a notice of removal and a federal court’s remand of the proceeding are in excess of jurisdiction — Civil liability attaches only if a judge acts in absence of jurisdiction.

State v. Fugate (Slip Opinion) (March 6, 2008)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2008/2008-ohio-856.pdf
-  When a defendant is held on multiple charges and is later sentenced to concurrent prison terms stemming from those charges, jail-time credit pursuant to R.C. 2967.191 must be applied against each concurrent prison term.
 

First District Court of Appeals

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*** Judgment Entries ***

State of Ohio vs. Fred Stone (March 5, 2008)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-070464_03052008.pdf
-  Stone was arrested and charged with driving under the influence of alcohol or a drug of abuse, driving with a prohibited level of a drug or drug metabolite in his urine, and driving with a prohibited level of alcohol in his urine. The trial court granted Stone’s motion to suppress, finding that the police had lacked probable cause to arrest him. The state has appealed under R.C. 2945.67 and Crim.R. 12(K). Judgment REVERSED.

State of Ohio vs. William Hart (March 5, 2008)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-070427_03052008.pdf
-  Hart pleaded guilty to two counts of felonious assault with specifications and to having a weapon while under a disability. The trial court imposed an agreed sentence that totaled five years. Hart asserts that (1) the trial court erred when it denied his motion to suppress, (2) he did not enter a constitutionally valid plea, and (3) he was denied the effective assistance of counsel. Judgment AFFIRMED.

State of Ohio vs. George L. Hawkins (March 5, 2008)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-070374_03052008.pdf
-  Hawkins was convicted of assault and sentenced to 150 days’ imprisonment. He argues that his conviction was against the manifest weight of the evidence. Hawkins maintains that he was acting in self-defense when he punched his landlord. Judgment AFFIRMED.

Joel A. Stewart vs. Robert J. Schell dba Royal Glen Apts. (March 5, 2008)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-070340_03052008.pdf
-  Stewart appeals the trial court’s entry of summary judgment in favor of Schell. Stewart sued his landlord for injuries arising from slipping and falling on an icy walkway. We hold that the trial court properly entered judgment as a matter of law in favor of Schell. Judgment AFFIRMED.

State of Ohio vs. Donald Gazaway (March 5, 2008)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-070294_03052008.pdf
-  After being charged with a misdemeanor for the marijuana, he was subsequently indicted for a felony offense involving the same drugs, so that offense was merged for sentencing purposes. He was charged with criminal simulation for the bills. He was given nonreporting probation for the counterfeit-bills offense, because he was already on felony probation. Gazaway has appealed the criminal simulation conviction. Gazaway complains that the trial court did not follow Crim.R. 11 in accepting his no-contest plea. Judgment AFFIRMED.

State of Ohio vs. Jason McGuffin (March 5, 2008)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-070283_03052008.pdf
-  McGuffin pleaded guilty to two counts of unlawful sexual conduct with a minor, felonies of the fourth degree. The trial court sentenced McGuffin to one year’s incarceration on each count, to be served consecutively. The court also classified McGuffin as a sexual predator. He argues that the trial court’s finding that he was a sexual predator was against the manifest weight of the evidence and that his sentences were contrary to law. Judgment AFFIRMED.

State of Ohio vs. William Fields (March 5, 2008)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-070268_03052008.pdf
-  Fields appeals from the Hamilton County Common Pleas Court’s judgment denying his R.C. 2953.21 petition for postconviction relief. Judgment AFFIRMED.

State of Ohio vs. Justin Andrews (March 5, 2008)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-070240_03052008.pdf
-  Andrew pleaded guilty to robbery, a felony of the third degree. He was sentenced to two years’ incarceration. He alleges that his sentence was contrary to law. Judgment AFFIRMED.

State of Ohio vs. Jenni
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-070233_03052008.pdf
-  Dane appeals a conviction for criminal damaging for allegedly ripping away the mirror of Knorr’s vehicle. She argues that her conviction was against the manifest weight of the evidence. Judgment AFFIRMED.

State of Ohio vs. Benny Byrd (March 5, 2008)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-070202_03052008.pdf
-  Byrd was convicted of aggravated robbery and assault. He argues that the trial court erred in denying his delayed motion for a new trial. He claims that because of Etler’s subsequent conviction, his testimony in Byrd’s case was tainted and Byrd should have received a new trial. Judgment AFFIRMED.

In Re: Matthew Harper (March 5, 2008)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-070195_03052008.pdf
-  Matthew C. Harper appeals from the judgment of the Hamilton County Juvenile Court denying his petition for custody of his minor child, Matthew J. Harper, and awarding custody to the child’s mother, Beverly Nichols. He argues that the trial court’s judgment was contrary to the manifest weight of the evidence. R.C. 3109.04(B)(1), which governs initial custody awards, requires a court to take into account the best interest of the child. In making the best-interest determination, a court must consider all relevant factors, including those listed in R.C. 3109.04(F)(1). In this case, the magistrate heard extensive testimony over three days and was in the best position to assess the parties’ credibility. In light of the abundant evidence that Harper and Nichols could not cooperate or make joint decisions for Matthew, and given Harper’s apparent inability to encourage Matthew’s sharing of love and affection for Nichols, the juvenile court properly denied Harper’s request for shared parenting. Judgment AFFIRMED.

State of Ohio vs. Paul Wallpe (March 5, 2008)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-070115_03052008.pdf
-  Wallpe was convicted of failing to comply with a lawful order of Cincinnati’s fire chief. Wallpe contends (1) that the ordinance provided no opportunity for him to challenge the order of the fire chief before he was subjected to criminal prosecution for failing to comply with the order, (2) that Cincinnati Municipal Code 1201-47 is unconstitutionally vague, and (3) that his conviction was against the manifest weight of the evidence and was based upon insufficient evidence. Judgment AFFIRMED.

State of Ohio vs. Daryell Gresham (March 5, 2008)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-060485_03052008.pdf
-  Gresham appeals the judgment of the Hamilton County Municipal Court adjudicating him a sexually-oriented offender under R.C. 2950.01(D). Gresham argues that the adjudication was erroneous. Accordingly, to establish that Gresham was a sexually-oriented offender, the state had the burden of demonstrating that the criminal child enticement had been sexually motivated. Under these circumstances, the state failed to demonstrate that Gresham’s violation of R.C. 2905.05 was a sexually-oriented offense. We sustain the assignment of error and REVERSE the judgment of the trial court.

***  Opinions ***

State of Ohio vs. James Marshall (March 7, 2008)
-  http://www.sconet.state.oh.us/rod/docs/pdf/1/2008/2008-ohio-955.pdf
-  The proximate-cause element of involuntary manslaughter is met when the defendant sets in motion a sequence of events that makes the death of another a direct, proximate, and reasonably inevitable consequence. Because trafficking in marijuana was the underlying felony supporting a charge of involuntary manslaughter, evidence of drugs seized from a coindictee’s residence was admissible to show the defendant’s involvement in a drug-dealing operation and to establish the identity of his coindictee. The defendant’s admitted use of an alias to avoid prosecution for a probation violation was a proper subject of prosecutorial comments regarding the defendant’s truthfulness. The defendanhe prosecution’s failure to disclose evidence of an alleged witness’s statement: it was undisputed that the alleged witness had originally told the police that she had not seen a shooting, and that she had only changed her account after the trial, when she claimed that she had actually seen the shooting and that the defendant was not the shooter. The defendant improperly received separate sentences for the allied offenses of possession of marijuana, in violation of R.C. 2925.11, and trafficking in the same marijuana, in violation of R.C. 2925.03(A)(2).

Stephan Business Enterprises, Inc. vs. Lamar Outdoor Advertising of Cincinnati (March 7, 2008)
-  http://www.sconet.state.oh.us/rod/docs/pdf/1/2008/2008-ohio-954.pdf
-  The interpretation of a contract is an issue of law that an appellate court reviews de novo, and referral of a case to a magistrate should not circumvent an appellate court’s de novo review. When the unambiguous terms of a lease provided that the lessee, an advertising company that had placed a billboard on the leased property, was to provide two lights to be placed at the lessor’s direction, the lessee did not breach the contract when it provided lights as directed by the previous lessor, and when the current lessor, an assignee, had never directed otherwise. The duty of good faith and fair dealing implied in every contract required the lessor to notify the lessee when the lights were not functioning, and the lessee did not violate the lease by failing to replace a light that was out, when it did not know or have reason to know that the light was not working.
 

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

 

Citizens for Tax v. Deters (March 5, 2008) (Appeal from S.D. OH)
-  http://www.ca6.uscourts.gov/opinions.pdf/08a0104p-06.pdf
-  As with the law in general, the First Amendment is a jealous mistress. It enables the people to exchange ideas (popular and unpopular alike), to assemble with the hope of changing minds, and to alter or preserve how we govern ourselves. But in return, it demands that sometimes seemingly reasonable measures enacted by our governments give way. The State of Ohio enacted a provision making it a felony to pay anyone for gathering signatures on election-related petitions on any basis other than the time worked. It did so for the sensible purpose of reducing fraudulent signatures. The provision, however, runs afoul of the First Amendment because it creates a significant burden on a core political speech right that is not narrowly tailored. Accordingly, we affirm the district court’s grant of summary judgment against the State.
 

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

 

USA v. Tatum (March 5, 2008) (Appeal from W.D. TN)
-  http://www.ca6.uscourts.gov/opinions.pdf/08a0102p-06.pdf
-  Defendant-Appellant Terry Ann Tatum pleaded guilty to ten counts of bank fraud in violation of 18 U.S.C. § 1344. She appeals the district court’s application of the United States Sentencing Guideline § 3B1.3 sentencing enhancement. Because this Court finds that § 3B1.3 was erroneously applied, we VACATE the sentence and REMAND for resentencing.

J & R Marketing v. General Motors  (March 5, 2008) (Appeal from E.D. MI)
-  http://www.ca6.uscourts.gov/opinions.pdf/08a0103p-06.pdf
-  Plaintiffs, purchasers of bonds registered by GMAC in September 2003, brought suit under Sections 11 and 12(a)(2) of the Securities Act of 1933 against GMAC and its control persons, including General Motors, which at the time wholly-owned GMAC. Plaintiffs alleged that GMAC had breached its disclosure obligations as well as made material misstatements in its registration statements and prospectuses for multiple offerings of bonds registered in 2003 and 2004. The defendants moved to dismiss the plaintiffs’ complaint for failure to state a claim. The district court granted the defendants’ motion. It found that plaintiffs lacked statutory standing to bring claims regarding offerings other than the one in which they had purchased. The district  that the plaintiffs had no claim regarding a duty to disclose because Item 303, the regulatory authority relied on by plaintiffs, did not give rise to a duty to disclose the information the plaintiffs sought because the information was not “firm specific” to GMAC. Additionally, the district court found that there was no material omission because the affirmative statements made by GMAC were not rendered misleading by the absence of the information cited by plaintiffs. Lastly, the district court held that most of GMAC’s statements were not false, and the ones that were arguably false were not material to bond investors. We find that the named plaintiffs’ own claims are without merit because the offering materials did not have material omissions because (1) Item 303 only imposes a duty to make forward-looking projections regarding known information, and plaintiffs pleaded only that the information was “knowable”; and (2) GMAC’s affirmative statements were not rendered misleading by the absence of the information described by plaintiffs. We also find that the offering materials for the offering in which plaintiffs’ purchased did not include material misstatements, because the affirmative statements made by GMAC were in fact true. Since the named plaintiffs’ individual claims cannot succeed on the merits, we AFFIRM the judgment of the district court dismissing plaintiffs’ complaint.

Floyd v. City of Detroit (March 6, 2008) (Appeal from E.D. MI)
-  http://www.ca6.uscourts.gov/opinions.pdf/08a0105p-06.pdf
-  This case arises from an incident in which Detroit police officers Emmett Quaine and Juan Reynoso, Jr. opened fire on Ronald Floyd in his own backyard, wounding him in the chest. Floyd, who was unarmed, claims that the officers fired on him without warning and without cause. He filed this lawsuit, pursuant to 42 U.S.C. § 1983, against the City of Detroit and the two officers. According to Floyd, the officers violated his constitutional rights by using excessive force, and the City is liable for failing to properly train them. All three defendants filed a joint motion for summary judgment. The district court denied the motion, finding that genuine issues of material fact precluded the grant of summary judgment. On appeal, Officer Quaine asserts that he is entitled to qualified immunity because his shot missed Floyd, and Officer Reynoso argues that he should receive qualified immunity because he fired under the mistaken but reasonable belief that Floyd had shot Quaine. For the reasons set forth below, we AFFIRM the judgment of the district court regarding its denial of summary judgment as to Quaine and Reynoso and DISMISS the City’s appeal as premature.

Jackson v. Fed Express Corp (March 6, 2008) (Appeal from W.D. TN)
-  http://www.ca6.uscourts.gov/opinions.pdf/08a0106p-06.pdf
-  Appellant Willie J. Jackson (“Jackson”) filed a complaint against FedEx Corporate Services, Inc. and Federal Express Corporation (collectively “FedEx”) alleging he was discriminated against based on his race in violation of The Civil Rights Act of 1991, 42 U.S.C. § 1981 as amended (“Section 1981”), Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et. seq. (“Title VII”) and the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. 621 et. seq. The district court dismissed Jackson’s ADEA claim and Jackson does not appeal that decision. The district court denied FedEx’s Motion for Summary Judgment with respect to Jackson’s claims under Section 1981 and Title VII. Following the close of Jackson’s evidence, the district court granted FedEx’s motion, pursuant to Fed. R. Civ. P. 50, to dismiss Jackson’s case. For the reasons set forth below, the district court’s order is reversed and the matter remanded for further proceedings consistent with this Opinion.

USA v. Gibney (March 7, 2008) (Appeal from W.D. KY)
-  http://www.ca6.uscourts.gov/opinions.pdf/08a0107p-06.pdf
-  Defendant Howard Kirk Gibney appeals his sentence wherein the disterm of imprisonment of 84 months and a restitution order in the amount of $1,103,358.10. Defendant argues that the district court erred as a matter of law in finding that Firefighter Carlos Cruz suffered bodily injury sufficient to warrant the imposition of the 84-month mandatory minimum sentence pursuant to 18 U.S.C. § 844(i). Gibney further appeals the factual basis and timeliness of the district court’s restitution order. For the reasons stated herein, we affirm defendant’s sentence.

Day v. James Marine Inc (March 7, 2008) (Appeal from Benefits Review Board)
-  http://www.ca6.uscourts.gov/opinions.pdf/08a0108p-06.pdf
-  There is a little more to this dispute than the topic (attorney’s fees) and the amount at stake (less than $15,000) would suggest. Larry Day says that the Benefits Review Board erred in determining that a portion of the fees he incurred in seeking workers’ compensation did not shift to his employer, James Marine, under the Longshore and Harbor Workers’ Compensation Act. Because the Board correctly determined that the Act does not allow an employee to collect attorney’s fees incurred before the employer has rejected the employee’s claim, we affirm this aspect of the Board’s decision. But because the Act does allow—and indeed requires—fee shifting from the time the employer rejects the employee’s claim through the employee’s successful prosecution of that claim, we reverse the Board’s contrary ruling on this point.
 

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