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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April 14-18, 2008

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

TOPICS:
- Municipal recall election
- Mandamus * Public records
- Constitutionality
- Writ of prohibition
- Family Law / Divorce Decree violation
- Weight of Evidence
- Sentencing
- Complaint / Failure to state a claim
- Appeal / Anders v. California
- Workers’ compensation
- Criminal Miscellaneous
- Negligence / Autos
- Workers' Compensation
- Search & Seizure / Probable cause
- Community Schools / Operation and funding
- Habeas corpus
- Federal Tax lien / Real Property / Subject-matter jurisdiction
- Black Lung Benefits Act / Attorney Fees
- Immigration / Petition for review
- Bankruptcy Abuse Prevention and Consumer Protection Act
- Immigration / Motion to reopen
- Bankruptcy / Mobile Steel test
 

Ohio Supreme Court

 

State ex rel. Sawyer v. Cendroski (Slip Opinion) (April 17, 2008)(2008-Ohio-1771)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2008/2008-ohio-1771.pdf
-  Municipal recall election*Petition signature requirement*Departure from office renders litigation moot*Attorney fees*R.C. 733.61. 
 
State ex rel. Cincinnati Enquirer v. Jones-Kelley (Slip Opinion) (April 17, 2008)(2008-Ohio-1770)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2008/2008-ohio-1770.pdf
-  Mandamus * Public records * Absent evidence showing that a list of names and addresses of certified foster caregivers discloses which, if any, is a public-assistance recipient, the list is not excepted from disclosure under federal and state law * Section 671(a)(8), Title 42, U.S.Code * Section 205.50, Title 45, C.F.R. * R.C. 5101.27(A) * A judicially created “good sense” rule does not except a public record from disclosure under R.C. 149.43. 
 
State ex rel. Wise v. Ryan (Slip Opinion) (April 16, 2008)(2008-Ohio-1740)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2008/2008-ohio-1740.pdf
-  Workers’ compensation * Continuing jurisdiction * Language of R.C.4123.65(A) is mandatory and requires strict compliance * Judgment reversed. 
 
State ex rel. Ross v. Indus. Comm. (Slip Opinion) (April 16, 2008) (2008-Ohio-1739)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2008/2008-ohio-1739.pdf
-  Workers’ compensation*R.C. 4123.57(A)*Increase in compensation for permanent partial disability*Changed circumstances. 
 
State ex rel. Consol. Biscuit Co. v. Indus. Comm. (Slip Opinion) (April 16, 2008) (2008-Ohio-1738)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2008/2008-ohio-1738.pdf
-  Workers' compensation * Court of appeals’ judgment affirmed. 
 
LeBeau v. Perry Videx, L.L.C. (Slip Opinion) (April 16, 2008) (2008-Ohio-1737)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2008/2008-ohio-1737.pdf
-  Constitutionality of R.C. 2305.10(C) * Certified questions of state law answered on the authority of Groch v. Gen. Motors Corp. 
 
McKinley v. Ohio Bur. of Workers' Comp. (Slip Opinion) (April 16, 2008) (2008-Ohio-1736)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2008/2008-ohio-1736.pdf
-  Constitutionality of R.C. 4123.93 and 4123.931 * Court of appeals’ judgment affirmed on the authority of Groch v. Gen. Motors Corp. 
 
Dambolena v. Ohio Bur. of Workers' Comp. (Slip Opinion) (April 16, 2008) (2008-Ohio-1735)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2008/2008-ohio-1735.pdf
-  Court of appeals’ judgment affirmed on the authority of Groch v. Gen. Motors Corp. 
 
State ex rel. Sliwinski v. Burnham Unruh (Slip Opinion) (April 16, 2008) (2008-Ohio-1734)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2008/2008-ohio-1734.pdf
-  Prohibition * No patent and unambiguous lack of jurisdiction * Judgment affirmed. 
 
State ex rel. Sears Roebuck & Co. v. Indus. Comm. (Slip Opinion) (April 16, 2008) (2008-Ohio-1733)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2008/2008-ohio-1733.pdf
-  Workers’ compensation * Court of appeals’ judgment affirmed. 
 
State ex rel. Rose v. Indus. Comm. (Slip Opinion) (April 16, 2008)(2008-Ohio-1732)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2008/2008-ohio-1732.pdf
-  Workers’ compensation * Court of appeals’ judgment affirmed. 
 

First District Court of Appeals

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*** Judgment Entries ***
 
Karen A. Cooper vs. Michael L. Williams (April 16, 2008)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-070608_04162008.pdf
-  Cooper alleged that Williams’s actions had violated their 2002 divorce decree. R.C. 2505.02(A) provides that the disobedience of a process, order, rule, judgment, or command of a court is punishable as contempt. We hold that the trial court did not abuse its discretion in (1) dismissing Cooper’s motion for contempt and (2) overruling her objections. Judgment AFFIRMED.
 
State of Ohio vs. Christopher Cipriani (April 16, 2008)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-070499_04162008.pdf
-  Cipriani was convicted of domestic violence and of violation of a protection order. Cipriani challenges the weight of the evidence upon which his convictions were based, as well as the trial court’s denial of his Crim.R. 29 motions for an acquittal. Judgment AFFIRMED.
 
State of Ohio vs. James E. Hocker (April 16, 2008)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-070491_04162008.pdf
-  Hocker pleaded guilty to one count of voluntary manslaughter with a gun specification. Hocker now appeals, arguing that the sentence was excessive. Jugment AFFIRMED.
 
State of Ohio vs. Oludayo Ashipa (April 16, 2008)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-070457_04162008.pdf
-  Ashipa entered a plea of guilty to theft and identity fraud in the case numbered B-0401447. Ashipa received an aggregate sentence of four years’ imprisonment for these offenses. In the case numbered B-0403917, Ashipa entered a plea of guilty to theft, identity fraud, and engaging in a pattern of corrupt activity. The trial court imposed an aggregate sentence of six years’ imprisonment for these offenses. But the trial court ordered the sentences in the two cases to be consecutive, for an overall aggregate sentence of ten years’ imprisonment. Ashipa argues that the trial court erred by imposing non-minimum and consecutive sentences. Judgment AFFIRMED.
 
Kirk Adrian Jackson vs. Shell Oil Company, et al. (April 16, 2008)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-070439_04162008.pdf
-  Jackson appeals the trial court’s judgment that dismissed his complaint. In his complaint, he sought injunctive relief as well as recovery from the defendants for his damages related to the leukemia priapism. Each of the defendants moved to dismiss the complaint. The trial court granted all the motions to dismiss. Jackson asserts that the trial court erred when it granted the motions to dismiss. Judgment AFFIRMED.
 
State of Ohio vs. Elizabeth Prokop (April 16, 2008)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-070401_04162008.pdf
-  Prokop pleaded guilty to three counts of burglary, each a third-degree felony. The trial court sentenced her to one-year terms of incarceration on each count, and ordered the terms to run consecutively. Prokop claims that the trial court erred in imposing a three-year sentence. Judgment AFFIRMED.
 
State of Ohio vs. Ronald Gatewood (April 16, 2008)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-070335_04162008.pdf
-  Gatewood had been indicted for felonious assault and had absconded. He was sentenced to concurrent one-year terms. This appeal involves only Gatewood’s conviction for having a weapon while under a disability. Gatewood’s counsel asks this court to conduct an independent review of the record to determine whether the proceedings in the trial court were free from prejudicial error. Judgment AFFIRMED.
 
State of Ohio vs. Tyrone Franklin (April 16, 2008)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-070326_04162008.pdf
-  Franklin was indicted for aggravated robbery, robbery, rape, and two counts of kidnapping, all with firearm specifications. He was also indicted for having weapons while under a disability. The trial court accepted the guilty pleas and imposed a 15-year aggregate sentence. Franklin’s counsel asks this court to conduct an independent review of the record to determine whether the proceedings in the trial court were free from prejudicial error. Judgment AFFIRMED.
 
State of Ohio vs. Shanell Leonard (April 16, 2008)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-060954_04162008.pdf
-  Leonard was convicted of four counts of child endangering in violation of R.C. 2919.22. She was sentenced to ten days in jail and two years of community control. Leonard's counsel has requested this court to review the record for any reversible error. Judgment AFFIRMED.
 
*** Opinions ***
 
State of Ohio vs. Asina Valentine (April 18, 2008)(2008-Ohio-1842)
-  http://www.sconet.state.oh.us/rod/docs/pdf/1/2008/2008-ohio-1842.pdf
-  When a defendant pleads no contest to a misdemeanor offense, and the explanation of the circumstances fails to demonstrate all the essential elements of the offense, the trial court cannot find the defendant guilty. After accepting a plea of no contest, the trial court erred by finding the defendant guilty of violating Cincinnati Municipal Code 899-5(b), which prohibits a person from being an employee of a sexually oriented business in the city without a valid license, when the explanation of circumstances failed to show that the defendant was an employee of such a business. [See CONCURRENCE IN JUDGMENT ONLY: The trial court’s more fundamental error was in construing a violation of the ordinance as a strict-liability offense when it was not; in the absence of a clear intention to impose strict liability, a violation required a showing of recklessness, which the court disregarded in finding the defendant guilty.] REVERSED and Appellant Discharged.
 
Haney v. Law (April 18, 2008)(2008-Ohio-1843)
-  http://www.sconet.state.oh.us/rod/docs/pdf/1/2008/2008-ohio-1843.pdf
-  In a negligence action arising from an automobile accident, the trial court did not err in construing certain material allegations in the plaintiff’s complaint concerning the cause of the accident as judicial admissions, when there was no contradictory evidence presented at trial, and when the plaintiff failed to plead an alternate theory for the cause of the accident. The trial court did not err in denying the plaintiff’s directed-verdict motion based on the defendant’s alleged violation of the assured-clear-distance statute: the assured-clear-distance statute could not have been used as a basis for liability, when the evidence showed that the plaintiff had suddenly appeared in the defendant’s path, and that her sudden and erratic appearance was not the defendant’s fault. Judgment AFFIRMED.
 
Emmert v. Mabe (April 18, 2008)(2008-Ohio-1844)
-  http://www.sconet.state.oh.us/rod/docs/pdf/1/2008/2008-ohio-1844.pdf
-  The trial court erred in granting summary judgment to an employer on the plaintiff’s claim to participate in the workers’ compensation fund: The employee had injured her knee after bending down to pick up litter in the lunchroom of a nursing home where she was employed as a housekeeper; cleaning the facility was an essential part of her job, and the fact that she could have sustained the same injury while not in a work-related setting was immaterial. [But, see, DISSENT: The plaintiff was not entitled to benefits because her injury was idiopathic, and she failed to sustain her burden to eliminate idiopathic causes for the injury; and if the record was not sufficiently developed to make a determination on idiopathic causes, the trial court should have conducted further proceedings on the issue.] Judgment REVERSED and Final Judgment Entered
 

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

 

USA v. Terry (April 15, 2008)(Appeal from S.D. OH)
-  http://www.ca6.uscourts.gov/opinions.pdf/08a0156p-06.pdf
-  Brent Terry entered a conditional guilty plea to one count of possession of images of minors engaged in sexually explicit conduct, in violation of 18 U.S.C. § 2252(a)(4)(B), reserving his right to appeal the district court’s denial of his motion to suppress. Terry argues that the search warrant permitting federal agents to search his home was not grounded upon probable cause, and that the search therefore violated the Fourth Amendment. For the following reasons, we affirm the judgment of the district court.
 
Greater Hts Academy v. Zelman  (April 18, 2008)(Appeal from S.D. OH)
-  http://www.ca6.uscourts.gov/opinions.pdf/08a0160p-06.pdf
-  This case arises from a 42 U.S.C. § 1983 Fourteenth Amendment claim filed by two Ohio community schools, Greater Heights Academy and W.C. Cupe Community School (“Appellants”), against three Ohio public officials, Dr. Susan Tave Zelman, Ohio Superintendent of Public Instruction, Dr. Paulo A. DeMaria, Associate Superintendent for the Center for School Finance of the Ohio Department of Education (ODE), and Todd L. Hanes, Director of ODE’s Office of Community Schools (collectively, “Appellees”). Appellants sought injunctive relief consisting of a prayer for the receipt of state educational funds pursuant to Ohio Rev. Code § 3314.08 and an opportunity for a hearing prior to the denial of funding. Concluding that community schools are political subdivisions and barred from asserting Fourteenth Amendment claims against state officials, the district court dismissed Appellants’ suit under Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief may be granted. The sole issue on appeal is whether Appellants are political subdivisions that therefore cannot invoke the protection of the Fourteenth Amendment against the state of Ohio.
 

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

 

Jeffries v. Morgan (April 14, 2008)(Appeal from E.D. KY)
-  http://www.ca6.uscourts.gov/opinions.pdf/08a0154p-06.pdf
-  Billy S. Jeffries appeals the district court’s denial of his petition for habeas corpus seeking to overturn his conviction for murder and attempted rape based on evidence discovered subsequent to trial that implicates another person, John Dillon, in the crime. The issues on appeal are whether the district court erred in holding that: (1) upholding the Kentucky Supreme Court’s decision that the evidence introduced at trial was sufficient to support a conviction; (2) affirming the Kentucky Court of Appeals’ decision that the Commonwealth’s failure to turn over the limited information it had about Dillon to the defense did not give rise to a Brady v. Maryland claim; and (3) denying as moot Jeffries’ motion to expand the record and compel the Commonwealth to produce the transcripts of the trial. We now find that the district court erred in denying Jeffries’ motion to expand the record. Therefore, we VACATE the district court’s denial of habeas corpus, REVERSE the denial of Jeffries’ motion to expand the record, and REMAND with instructions that the district court review the entire available record in assessing Jeffries’ petition.
 
Munaco v. USA (April 15, 2008)(Appeal from E.D. MI)
-  http://www.ca6.uscourts.gov/opinions.pdf/08a0155p-06.pdf
-  Plaintiff Salvatore Munaco paid the federal government $326,061.34 to satisfy a federal tax lien placed on real property he owned in Florida. Believing that the lien was invalid, Munaco sued for a refund in federal district court. Unfortunately for Munaco, the district court ruled correctly that it lacked jurisdiction because the United States is immune from suit. Even more unfortunately, Munaco’s failure to pursue the prescribed statutory remedies available to a person in his position means that he has no further remedy available to him. We affirm the district court’s dismissal of Munaco’s claim for lack of subject-matter jurisdiction.
 
B & G Mining v. OWCP (April 16, 2008)(Appeal from Benefits Review Board)
-  http://www.ca6.uscourts.gov/opinions.pdf/08a0157p-06.pdf
-  The claimant in this black-lung benefits case, Danny Bentley, received an award of benefits against his employer, B&G Mining, Inc., and the company’s insurer, Old Republic Insurance Company (collectively, “B&G” or the “company”). At each level of review in the Department of Labor, the adjudicators awarded fees to Bentley’s attorney under the fee-shifting provision of the Black Lung Benefits Act, 30 U.S.C. § 932(a). On petition for review before this court, B&G argues that the adjudicators abused their discretion in the rates they used and the hours they approved. For the reasons set forth below, we affirm the fee awards.
 
Ndrecaj v. Mukasey (April 16, 2008)(Appeal from Board of Immigration Appeals)
-  http://www.ca6.uscourts.gov/opinions.pdf/08a0158p-06.pdf
-  The lead petitioner, Urim Ndrecaj (“Ndrecaj”), and his family seek review of the BIA’s order removing them to Albania. The Immigration Judge (“IJ”) concluded that Ndrecaj was not credible and thus found him and his family ineligible for asylum and withholding of removal under the Immigration and Nationality Act (“INA”) and the Convention Against Torture (“CAT”). The Board of Immigration Appeals (“BIA”) adopted the IJ’s decision without opinion. We conclude that the evidence does not compel a contrary conclusion as to Ndrecaj’s credibility, and we DENY the petition for review of the BIA’s decision.
 
In re: Kenneth Davis v. (April 16, 2008)(Appeal from U.S. Bankruptcy Court - Cincinnati)
-  http://www.ca6.uscourts.gov/opinions.pdf/08b0007p-06.pdf
-  Kenneth L. Davis and Tammy R. Davis (collectively, the “Debtors”) appeal an order of the bankruptcy court prohibiting them from modifying the secured claim of Green Tree Servicing, LLC (“Green Tree”) and sustaining the objection of Green Tree to confirmation of the Debtors’ chapter 13 plan. For the reasons that follow, we reverse and remand.
 
Barry v. Mukasey (April 17, 2008)(Appeal from Board of Immigration Appeals)
-  http://www.ca6.uscourts.gov/opinions.pdf/08a0159p-06.pdf
-  Nene Amy Barry seeks review of an order of the Board of Immigration Appeals (“BIA”) denying her untimely motion to reopen. To the extent we lack jurisdiction to review the BIA’s decision not to exercise its sua sponte discretion to reopen removal proceedings, we DISMISS the appeal in relevant part. Because the BIA did not otherwise abuse its discretion when it denied Barry’s request to equitably toll the time limit for her motion to reopen, we DENY the petition.
 
In re: J & M Salupo v.  (April 18, 2008)(Appeal from  U.S. Bankruptcy Court - Cleveland)
-  http://www.ca6.uscourts.gov/opinions.pdf/08b0008p-06.pdf
-  Paul T. and Nancy Hamerly (“Appellants”) appeal the bankruptcy court’s grant of a judgment on the pleadings pursuant to Federal Rule of Bankruptcy Procedure 7012(c) in favor of Fifth Third Mortgage Company (“Appellee”) and denial of Appellants’ motion for reconsideration of that judgment, which held that Appellants could not prove any facts entitling them to obtain clear title to certain real property or warranting equitable subordination of Appellee’s mortgage against such property. Appellee had extended a construction loan to J & M Salupo Development Co. (“Debtor”) and recorded a mortgage against the property. Appellants subsequently had executed a purchase agreement with Debtor for the construction of a new home on the property, paid Debtor $140,000.00 in installment payments on the contract, and took possession of the home prior to closing.
 

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