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March 24-28, 2008

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

TOPICS:
- Labor & Industry / Civil rights commission
- Sentencing / Robbery or Theft
- Contracts / Statutory interest rate
- Anders v. California
- Final Appealable order
- Negligence / Breach of Duty
- Americans with Disabilities Act
- Self-defense
- Sentencing
- Sexual predator classification
- Insufficient Evidence / Ineffective counsel
- The doctrine of forum non conveniens
- Education / Community-school average daily-membership
- Autos / Criminal / Evidence
- Real Property
- Contracts / Attorney Fees
- Burglary / B&E / Trespass / Constitutional Law
- Appellate Review / Civil
- Civ.R. 53
- Evidence / Procedure
- Search & Seizure
- Civ.R. 60
- Family Law / Child endangerment / Due process claims
- Writ of habeas corpus
- United States Sentencing Guidelines
- Attorney Fees
- Search Warrants validity / Motion to suppress
- Family Medical Leave Act / Gender discrimination
 

Ohio Supreme Court

 

State v. Aleshire (Slip Opinion) (March 26, 2008) (2008-Ohio-1272)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2008/2008-ohio-1272.pdf
-  Court of appeals' judgment reversed on the authority of State v.
Sarkozy, guilty plea vacated, and cause remanded for a new trial.
 
State ex rel. Am. Legion Post 25 v. Ohio Civ. Rights Comm. (Slip
Opinion) (March 26, 2008) (2008-Ohio-1261)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2008/2008-ohio-1261.pdf
-  Mandamus - R.C. 4112.04 - Ohio Civil Rights Commission has clear
legal duty to issue a subpoena at a respondent's request during a
preliminary investigation of an administrative complaint - Adm.Code
4112-3-13(B), which authorizes issuance of a subpoena by the Ohio Civil
Rights Commission only after a complaint is filed, is invalid because it
conflicts with R.C. 4112.04(B).
 
State v. Smith (Slip Opinion) (March 26, 2008) (2008-Ohio-1260)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2008/2008-ohio-1260.pdf
-  In determining whether an offense is a lesser included offense of
another when a statute sets forth mutually exclusive ways of committing
the greater offense, a court is required to apply the second part of the
test established in State v. Deem to each alternative method of
committing the greater offense - Theft is a lesser included offense of
robbery.
 
Minster Farmers Coop. Exchange Co., Inc. v. Meyer (Slip Opinion) (March
26, 2008) (2008-Ohio-1259)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2008/2008-ohio-1259.pdf
-  Contracts- R.C. 1343.03(A) and 1302.10-Statutory interest rate on
account-Notation on invoice not constituting a written contract for a
different rate.
 

First District Court of Appeals

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*** Judgment Entries ***
 
State of Ohio vs. London O'Neal (March 26, 2008)
- http://www.hamilton-co.org/appealscourt/docs/decisions/C-080154_03262008.pdf
-  Oneal appeals the judgments of the Hamilton County Court of Common
Pleas convicting him of aggravated robbery with firearm specifications.
Oneal's counsel, pursuant to Anders v. California, states that he has
found no errors in the proceedings below and requests this court to
review the record for any reversible error. Judgments AFFIRMED.
 
Allen L. Davis vs. CNG Financial Corporation (March 26, 2008)
- http://www.hamilton-co.org/appealscourt/docs/decisions/C-070753_03262008.pdf
-  CNG Financial Corporation ("CNG") appeals the trial court's judgment
that granted Allen Davis's motion for a preliminary injunction. We
conclude that the trial court's order is not a final, appealable order,
and we therefore dismiss the appeal.
 
Curtiss McCulley vs. Graebel-Cincinnati Movers, Inc., et al. (March 26,
2008)
- http://www.hamilton-co.org/appealscourt/docs/decisions/C-070495_03262008.pdf
-  McCulley appeals the trial court's judgment that dismissed his
complaint against Graebel-Cincinnati Movers, Inc., and Graebel Van
Lines, Inc., (collectively, "Graebel"). McCulley sought damages from
Graebel for the injuries that he had suffered. McCulley now asserts that
the trial court erred when it dismissed his complaint. Judgment
AFFIRMED.
 
Philip Mink vs Nationwide Mutual Insurance Company (March 26, 2008)
- http://www.hamilton-co.org/appealscourt/docs/decisions/C-070473_03262008.pdf
-  Mink appeals the trial court?s entry of summary judgment for
defendant-appellee Nationwide Mutual Insurance Company ("Nationwide").
He alleges that "[t]he trial court erred (1) in violating a U.S. Supreme
Court order", (2) in violating Civ. Rules 5(E) and 45(A)(2) causing
wrongful and damaging filings by clerk on Civ.R. 5(E)", and (3) "in not
enforcing ORC 2911.21 trespass posted on private property." Judgment
AFFIRMED.
 
State of Ohio v. Scott Bottenhorn (March 26, 2008)
- http://www.hamilton-co.org/appealscourt/docs/decisions/C-070472_03262008.pdf
-  Bottenhorn appeals the judgment of the Hamilton County Municipal
Court convicting him of assault under R.C. 2903.13. Bottenhorn argues
that his conviction was against the manifest weight of the evidence.
Specifically, he argues that the trial erred in rejecting his claim of
self-defense. We reverse the portion of the trial court's judgment
concerning restitution and remand the cause for the trial court to
determine the proper amount. We affirm the trial court's judgment in all
other respects.
 
State of Ohio vs. Reginald Murphy (March 26, 2008)
- http://www.hamilton-co.org/appealscourt/docs/decisions/C-070423_03262008.pdf
-  Murphy was convicted plea guilty to aggravated robbery, robbery, and
felonious assault. Murphy filed a notice of appeal "from the final
judgment entered in this action on the 17[th] day of May, 2007." App.R.
4(A) requires that a notice of appeal be filed within 30 days of the
entry of the judgment appealed. The record does not reflect the May 17,
2007, judgment specified in the notice of appeal. And the June 12 notice
of appeal was not timely filed from the April 27 entry denying Murphy's
postconviction petition. We, therefore, dismiss the appeal.
 
State of Ohio vs. Terron Lindsey (March 26, 2008)
- http://www.hamilton-co.org/appealscourt/docs/decisions/C-070409_03262008.pdf
-  Lindsey pleaded guilty to escape. He was placed on community control
for three years. Lindsey violated the terms of his community control.
The trial court revoked Lindsey's community control and imposed a
sentence of two years' incarceration. Lindsey alleges that his sentence
was contrary to law. Judgment AFFIRMED.
 
State of Ohio vs. Ronald Summers (March 26, 2008)
- http://www.hamilton-co.org/appealscourt/docs/decisions/C-070386_03262008.pdf
-  Summers appeals the trial court's judgment adjudicating him a sexual
predator. Summers asserts that the trial court erred when it adjudicated
him a sexual predator. Judgment AFFIRMED.
 
State of Ohio vs. Keith Smith (March 26, 2008)
- http://www.hamilton-co.org/appealscourt/docs/decisions/C-070382_03262008.pdf
-  Smith pleaded guilty to having a weapon while under a disability and
carrying a concealed weapon. Smith violated the terms of his community
control. The trial court revoked Smith's community control and imposed
concurrent sentences of three years'incarceration for having a weapon
while under a disability and 17 months' incarceration for carrying a
concealed weapon, for an aggregate sentence of three years'
incarceration. He argues his sentence was contrary to law. Judgment
AFFIRMED.
 
State of Ohio vs. Allon Higgins (March 26, 2008)
- http://www.hamilton-co.org/appealscourt/docs/decisions/C-070282_03262008.pdf
-  Higgins pleaded guilty to aggravated robbery, to the accompanying
three-year firearm specification, and to having a weapon while under a
disability. He was sentenced to consecutive terms of nine years for
aggravated robbery, three years for the firearm specification, and three
years for having a weapon while under a disability, for an aggregate
term of 15 years' incarceration. He alleges that the trial court erred
in sentencing him. Judgment AFFIRMED.
 
State of Ohio vs. LaMonte Browner (March 26, 2008)
- http://www.hamilton-co.org/appealscourt/docs/decisions/C-070204_03262008.pdf
-  Browner was found guilty of theft and obstructing official business.
He was sentenced on the theft to 180 days' incarceration, with 90 days
suspended. He was also ordered to pay restitution. Browner argues his
conviction was based on insufficient evidence and defense counsel was
ineffective.  Judgment AFFIRMED.
 
Shirley Dell Rogers, et al. vs. Western Express, Inc., et al. (March
26, 2008)
- http://www.hamilton-co.org/appealscourt/docs/decisions/C-070173_03262008.pdf
-  Shirley Dell Rogers and his wife, Sherri Rogers, appeal the trial
court's dismissal of their complaint for negligence and loss of
consortium against defendants-appellees Western Express, Inc., and
Travis K. Bynum ("Western Express"). Rogerses argue that the trial court
erred in dismissing for lack of proper venue. Judgment AFFIRMED.
 
The Summit Country Day School vs. Republic-Franklin Insurance Company,
et al. (March 26, 2008)
- http://www.hamilton-co.org/appealscourt/docs/decisions/C-070044_03262008.pdf
-  Third-party plaintiff-appellant, Republic-Franklin Insurance
Company, appeals the trial court's judgment dismissing its third-party
complaint asserting subrogation claims, as well as claims for unjust
enrichment and tortious interference with a contract and a business
relationship, against third-party defendant-appellee, Turner
Construction Company. Republic now maintains that the trial court erred
in dismissing its third-party complaint against Turner. Judgment
AFFIRMED.
 
*** Opinions ***
 
State of Ohio vs., Adam N. Wiest (March 28, 2008)(2008-Ohio-1433)
-  http://www.sconet.state.oh.us/rod/docs/pdf/1/2008/2008-ohio-1433.pdf
-  The trial court did not err in taking judicial notice of the
reliability of an LTI 20-20 laser device in a prosecution for speeding:
The trial court had previously taken judicial notice of the laser
device, and the prosecution was therefore not required to adduce expert
testimony or to produce a judgment entry from a prior proceeding to
demonstrate that the device was reliable. Judgment AFFIRMED.
 
Patricia P. Poe, et al. vs. Scott W. Ferguson, et al. (March 28,
2008)(2008-Ohio-1442)
-  http://www.sconet.state.oh.us/rod/docs/pdf/1/2008/2008-ohio-1442.pdf
-  Because, for purposes of Civ.R. 60(B), the neglect and inadvertence
of an attorney must be imputed to the client, a plaintiff was not
entitled to relief under Civ.R. 60(B)(1) when her attorney inadvertently
filed a notice of dismissal of all defendants with prejudice, instead of
dismissing only the one defendant with whom the plaintiff had settled. A
plaintiff was not entitled to relief under Civ.R. 60(B), when there were
no operative facts to demonstrate that the plaintiff had a meritorious
claim to present if relief was granted. Judgment AFFIRMED.
 
State of Ohio vs. Thomas G. Luckett (March 28, 2008)(2008-Ohio-1441)
-  http://www.sconet.state.oh.us/rod/docs/pdf/1/2008/2008-ohio-1441.pdf
-  In a prosecution for driving under the influence of alcohol, the
trial court properly overruled defendant's motion to suppress evidence
seized incident to a traffic stop: The police officer's testimony at the
suppression hearing that he had observed defendant's vehicle weaving in
its lane to such an extent that it created a danger of an automobile
accident provided a reasonable and articulable suspicion of erratic
driving sufficient to justify a warrantless stop. Judgment AFFIRMED.
 
State of Ohio vs. Rodriquez Madaris (March 28, 2008)(2008-Ohio-1440)
-  http://www.sconet.state.oh.us/rod/docs/pdf/1/2008/2008-ohio-1440.pdf
-  Police officers were entitled to give their opinions about the
demeanor of the defendant and another individual while they were being
questioned about a robbery, when the opinions were based on firsthand
knowledge and the perceptions of the witnesses, and when they were
useful to the jury in determining whether to believe the defendant's
assertion that the robbery was a staged offense. The trial court did not
abuse its discretion in providing a magnifying glass so that the jury
could examine a photograph during its deliberations: The use of the
magnifying glass simply aided the jurors' natural sight and did not
create additional evidence; and there was no need to notify the parties
about what the court had done. Judgment AFFIRMED.
 
Gary Chan vs. TASR (March 28, 2008)(2008-Ohio-1439)
-  http://www.sconet.state.oh.us/rod/docs/pdf/1/2008/2008-ohio-1439.pdf
-  Where a case is referred to a magistrate, the magistrate and the
trial court must conduct the proceedings in conformity with the powers
and procedures conferred by Civ.R. 53; the rule contemplates that a
written magistrate's decision shall be filed with the clerk and served
on the parties, that the parties shall have an opportunity to object,
and that the trial court shall rule on any objections and then either
adopt, reject, or modify the magistrate's decision before entering a
judgment. When a party properly files objections, the trial court is
required to independently review the objections to ascertain that the
magistrate has properly determined the factual issues and appropriately
applied the law; Civ.R. 53(D)(4)(d) expressly provides that, before
entering judgment, "the court shall rule on those objections." A trial
court has a mandatory duty under Civ.R. 53(D)(4)(d) to independently
review and rule on objections to a magistrate's decision before entering
judgment; any suggestion that a trial court's unstated disposition of
objections can be inferred from a bare-bones judgment entry is
inconsistent with this rule. Judgment REVERSED and Cause REMANDED.
 
George Sullivan vs. Anderson Township, et al. (March 28,
2008)(2008-ohio-1438)
-  http://www.sconet.state.oh.us/rod/docs/pdf/1/2008/2008-ohio-1438.pdf
-  Absent the certification required by Civ.R. 54(B), an order that
denies a political subdivision's immunity defense but that leaves
pending for disposition other claims against multiple parties is not
immediately appealable; Civ.R. 54(B) must be followed when a case
involves multiple claims or multiple parties.
 
State of Ohio vs. Gregory Flannery AND
State of Ohio vs. Mary Jegen AND
State of Ohio vs. Barbara Wolf AND
State of Ohio vs. Ellen Dienger (March 28, 2008)(2008-ohio-1437)
-  http://www.sconet.state.oh.us/rod/docs/pdf/1/2008/2008-ohio-1437.pdf
-  The trial court did not err when it convicted individuals protesting
the war in Iraq of criminal trespass: the protestors' moral objection to
the war was, standing alone, insufficient to grant them a privilege to
remain in the office of a United States Congressman more than two hours
after it had been closed to the public. The defendants' right to a
public trial was not violated when the trial court excluded four members
of the public from the courtroom due to fire-code regulations. (State v.
Jones [Dec. 17, 1999], 1st Dist. No. C-980294, followed.] Judgment
AFFIRMED.
 
Anderson Township Historical Society, Inc. vs. Board of Revision of
Hamilton County, Ohio, et al. (March 28, 2008)(2008-ohio-1436)
-  http://www.sconet.state.oh.us/rod/docs/pdf/1/2008/2008-ohio-1436.pdf
-  The sale price in a recent arm's-length transaction between a
willing seller and a willing buyer shall be considered the true value of
real property for taxation purposes. Judgment REVERSED and Final
Judgment Entered.
 
Randy Wright vs. Mark Fleming (March 28, 2008)(2008-ohio-1435)
-  http://www.sconet.state.oh.us/rod/docs/pdf/1/2008/2008-ohio-1435.pdf
-  A corporate officer is responsible for clearly identifying the
corporation for which the officer is acting; an officer who fails to do
so is exposed to individual liability regardless of his or her intent,
and where an officer signs a contract in his own name, without any
qualification, and without clearly identifying the corporation for which
he claims to be signing, he is individually liable under the contract.
Ohio has adopted the "American Rule" in which each party to a lawsuit
must pay his or her own attorney fees; accordingly, attorney fees
generally are not recoverable in a contract action, unless the parties
have contracted to shift the fees, or the trial court has made a finding
of bad-faith conduct. Judgment AFFIRMED in Part and REVERSED in Part.
 
Cincinnati City School District Board of Education vs. State Board of
Education of Ohio, et al. (March 28, 2008)(2008-ohio-1434)
-  http://www.sconet.state.oh.us/rod/docs/pdf/1/2008/2008-ohio-1434.pdf
-  The trial court properly granted summary judgment for the city board
of education, when the state board of education and department of
education failed to follow the Ohio Revised Code in calculating the
number of community-school students for purposes of state funding for
traditional school districts: The statutory scheme mandated that the
number of community-school students be calculated using the data
submitted by the superintendent of each school district based on the
October count of students, or the Formula ADM, and not the data reported
monthly by the community schools, or the CSADM. See R.C. 3317.022(A),
3317.02(D) and 3317.03(A). Judgment AFFIRMED.
 

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

 

Smith v. Williams-Ash (March 26, 2008)(Appeal from S.D. OH)
-  http://www.ca6.uscourts.gov/opinions.pdf/08a0124p-06.pdf
-  David and Melody Smith filed this 42 U.S.C. § 1983 action against Judy Williams-Ash-a social worker employed by the Hamilton County Department of Jobs and Family Services ("Children's Services")-claiming violation of their due process right to a hearing before the temporary removal of their children from their home. The district court granted summary judgment in favor of Williams-Ash, holding that the Smiths were not entitled to a hearing because they consented to the removal of their children pursuant to a voluntary "safety plan." We agree and affirm.
 
Gray v. Moore (March 26, 2008)(Appeal from S.D. OH)
-  http://www.ca6.uscourts.gov/opinions.pdf/08a0126p-06.pdf
-  On June 27, 2001, a jury in Hamilton County, Ohio, convicted Matthew Gray of aggravated murder and kidnapping, both with firearm specifications. After exhausting his remedies in state court, Gray filed the instant petition for a writ of habeas corpus in the United States District Court for the Southern District of Ohio, arguing that the trial court violated his constitutional rights to due process, to be present at his trial, and to confront the witnesses against him, when it removed him from the courtroom without warning him of the consequences of his actions. Because we conclude that the Ohio appellate court unreasonably applied Illinois v. Allen, 397 U.S. 337 (1970), and because the error had a substantial and injurious effect on the outcome of Gray's kidnapping conviction, we REVERSE the district court's judgment and GRANT a conditional writ of habeas corpus with respect to that conviction. However, because the record supports Gray's aggravated murder conviction irrespective of the constitutional error, we AFFIRM the district court's denial of Gray's habeas petition with respect to the aggravated murder conviction.
 
USA v. Wittingen (March 27, 2008)(Appeal from N.D. OH)
-  http://www.ca6.uscourts.gov/opinions.pdf/08a0128p-06.pdf
-  Defendant James Wittingen pleaded guilty to one federal count of distributing methamphetamine, a controlled substance. Finding that the applicable sentencing range under the United States Sentencing Guidelines (the "Guidelines" or "U.S.S.G.") was higher than that proposed by either Wittingen, the Government, or the probation office, the district court sentenced Wittingen to fifty-seven months of imprisonment. Wittingen appeals, arguing that his sentence was unreasonable under United States v. Booker, 543 U.S. 220 (2005). We find no basis for reversing the sentence. Wittingen admitted to an officer that he manufactured approximately 270 grams of methamphetamine over an eighteen-month period. While he stated to the officer that he did not sell the drug, that assertion is belied by the fact that he sold the drug to an informant. Moreover, he admitted to bartering the drug in exchange for manual labor around his home, thereby distributing the drug. The amount of drugs manufactured and distributed was more than enough to justify the district court's Guidelines calculation. Finally, while Wittingen's personal circumstances are certainly lamentable, the circumstances are also (unfortunately) quite common in these types of cases. Accordingly, for the reasons more fully explained below, we affirm.
 

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

 

Bridgeport Music Inc v. WB Music Corp (March 25, 2008) (Appeal from M.D. TN)
-  http://www.ca6.uscourts.gov/opinions.pdf/08a0123p-06.pdf
-  Plaintiff-Appellant Bridgeport Music, Inc. ("Bridgeport") appeals from the district court's order awarding attorneys' fees and costs to Defendant-Appellee Universal-Polygram International Publishing, Inc. ("UPIP") as a prevailing party under 17 U.S.C. § 505. This court had vacated an earlier award of fees and costs to UPIP and remanded to the district court for further consideration. Bridgeport Music, Inc. v. Rhyme Syndicate Music, 376 F.3d 615 (6th Cir. 2004). On remand, the district court awarded the same amount of fees and costs to UPIP. Bridgeport argues that the district court abused its discretion. For the reasons set forth below, we affirm.
 
USA v. West (March 26, 2008) (Appeal from W.D. KY)
-  http://www.ca6.uscourts.gov/opinions.pdf/08a0125p-06.pdf
-  William David West challenges the validity of two search warrants issued by two state court judges. He argues that the affidavits in support of both search warrants did not support a finding of probable cause. He also argues that the Leon good-faith exception does not apply to rescue the faulty warrants, and that all evidence obtained from these searches should have been excluded. The district court denied West's motion to suppress evidence seized pursuant to the warrants. We find that neither search warrant was supported by affidavits establishing probable cause and the Leon good-faith exception does not apply. Accordingly, we REVERSE the district court's order denying West's motion to suppress, VACATE the ensuing judgment of conviction, and REMAND for further proceedings in accordance with this opinion.
 
Grace v. Uscar, et al (March 26, 2008) (Appeal from E.D. MI)
-  http://www.ca6.uscourts.gov/opinions.pdf/08a0127p-06.pdf
-  The plaintiff, Rosalyn Grace, appeals the district court's order of summary judgment resulting in the dismissal of her Family Medical Leave Act (FMLA) and federal and state gender discrimination claims against defendants USCAR and Bartech Technical Services, LLC (Bartech). First, she argues that Bartech and USCAR are joint employers and thus both liable for violations of her rights under the FMLA. In support of this argument, she contends that the district court misinterpreted existing case law regarding successor-in-interest liability under the FMLA and that she was eligible for unpaid medical leave. Second, she contends that the district court erred by granting the defendants' motion for summary judgment on her Title VII gender discrimination claim. Specifically, Grace argues that Bartech had sufficient notice of USCAR's violations to be held liable as a joint employer. And finally, the plaintiff argues that her related state-law claims should have been dismissed without prejudice, instead of with prejudice. We hold that Bartech and USCAR are joint employers for FMLA purposes and that Grace was eligible for unpaid leave. Grace has raised a genuine issue of material fact as to whether the defendants violated her rights under the FMLA; consequently, the district court's grant of summary judgment is reversed as to the plaintiff's FMLA claims. We agree, however, with the district court that the defendants are entitled to summary judgment on the merits of her gender discrimination claims under Title VII. Finally, the plaintiff is mistaken in stating that her state-law gender discrimination claim was dismissed with prejudice; it was not.
 

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