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.

If you would like to receive a daily e-mail with same-day case updates, please join our Subscribers-Only discussion list.  Not a subscriber?  Join today!

June 27th, 2008

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

TOPICS:
- Search and Seizure
- Autos / Criminal / Speedy Trial
- Divorce
- Homicide / Miranda / Constitutional law / Criminal Prosedutor / Evidence
- Civil Service
- Autos / Criminal / Evidence
- Negligence
- Commercial / UCC / Civil Misc
- Zoning / Constitutional Law / Civil
- Civil Misc / Prevailing-wage law
- Contract / Insurance / Duty to defend
- Federal Communications Commission / Communications Act of 1934 / Competition
- Sentencing
- Interlocutory appeal / Qualified immunity
- Miranda / Sentencing
 

Ohio Supreme Court

 

 No Opinions.
 

First District Court of Appeals

[Search Other Ohio Districts]
 

State of Ohio vs. Kevin Lee (June 27, 2008)(2008-Ohio-3157)
-  http://www.sconet.state.oh.us/rod/docs/pdf/1/2008/2008-ohio-3157.pdf
-  The trial court properly suppressed evidence seized during the execution of a search warrant, when the complete absence of any temporal reference in the supporting affidavit rendered the warrant facially invalid and made it impossible for a reasonable police officer to execute the warrant in objective good faith. One fundamental requirement of a valid search conducted pursuant to a warrant is that probable cause be shown to exist at the time the warrant is sought, not merely that it existed at some time in the past. The suppression of evidence is proper when it vindicates the interests protected by the constitutional guarantee that has been violated; because the constitutional guarantee that a search warrant only issue upon a showing of probable cause protects every citizen’s interest in preventing the government from seeing or taking evidence without justification, the exclusionary rule is the proper remedy to be applied when a warrant is constitutionally defective.
 
State of Ohio vs. Christine R. Weable (June 27, 2008)(2008-Ohio-3158)
-  http://www.sconet.state.oh.us/rod/docs/pdf/1/2008/2008-ohio-3158.pdf
-  Defense counsel did not perform deficiently by failing to file a motion to dismiss a charge of operating under the influence of alcohol (”OMVI”) and a marked-lanes violation based upon a speedy-trial violation, where the record revealed that defense counsel had requested a number of continuances, and that when the continuances were accounted for, only 85 days chargeable to the state had elapsed from the date of the defendant’s arrest through the trial date. Defendant’s conviction for OMVI was not based upon insufficient evidence and was not against the manifest weight of the evidence, where the state presented testimony that the defendant had driven outside the marked lanes on a straight roadway twice and again when she had to compensate for making a turn outside the marked lanes; that the defendant had smelled of alcohol, had glassy eyes, slurred her speech at least once, and could not perform field sobriety tests appropriately, and where the jury was free to weigh this testimony against the defendant’s claims that she had “looked fine,” that the results of the field sobriety tests had been undermined by gusty winds, and that she had been tired.
 
Melissa Gayle Powers vs. Todd William Powers (June 27, 2008)(2008-Ohio-3159)
-  http://www.sconet.state.oh.us/rod/docs/pdf/1/2008/2008-ohio-3159.pdf
-  Because an agreement between the parties to a shared-parenting plan concerning child support may be in the best interests of the parents but not of the child, a trial court does not abuse its discretion when it completes the appropriate child-support worksheet and then invalidates the agreement and orders child support in conformity with the worksheet.
 
State of Ohio vs. DeAnte Winfrey (June 27, 2008)(2008-Ohio-3160)
-  http://www.sconet.state.oh.us/rod/docs/pdf/1/2008/2008-ohio-3160.pdf
-  Because police were not required to readminister Miranda warnings when less than an hour had elapsed since an initial, complete recitation of Miranda warnings, the initial warnings remained effective even though a second recitation was incomplete. The defendant did not need to expressly state that he was waiving his Miranda rights; the defendant’s affirmative nod in response to an officer’s question about whether the defendant understood his Miranda rights constituted a valid indicator that the defendant understood his rights. The trial court did not err by overruling a juvenile’s motion to suppress his statements to police, where the court concluded that the statements were knowingly, intelligently, and voluntarily made: the defendant was 16 years old and an average 11th-grade student who understood instructions, and had sold drugs for two years; his interviews with police did not exceed a few hours; and the defendant did not ask for an attorney or refuse to speak with officers, and he was not subjected to physical deprivations by police. The prosecutor’s reference to Judas Iscariot in closing argument did not affect the outcome of the trial, where the prosecutor did not directly compare the defendant with Judas, instead using the reference only to point out a similar event involving a disingenuous greeting. Even if the victim had laughed when the defendant told him he was “salty” at him, the behavior was not objectively sufficient provocation for purposes of voluntary manslaughter. The trial court did not abuse its discretion by refusing to allow expert testimony on the defendant’s mental state, where the defendant had failed to satisfy the objective portion of the question of whether there had been reasonably sufficient provocation for purposes of voluntary manslaughter.
 
Mark Gissiner vs. The City of Cincinnati, Ohio, et al. (June 27, 2008)(2008-Ohio-3161)
-  http://www.sconet.state.oh.us/rod/docs/pdf/1/2008/2008-ohio-3161.pdf
-  When a classified civil servant is moved to an unclassified position without waiving his classified status, he is entitled to retain the pay of that unclassified position after a demotion not based upon cause.
 
State of Ohio vs. Katie Grizovic (June 27, 2008)(2008-Ohio-3162)
-  http://www.sconet.state.oh.us/rod/docs/pdf/1/2008/2008-ohio-3162.pdf
-  In a prosecution under R.C. 4511.19(A)(1)(a), testimony concerning the statistical probability that a defendant would have tested over the legal limit if the defendant had submitted to a chemical test was highly improper and inadmissible: such testimony is not admissible unless the state additionally presents expert testimony linking a specific blood-alcohol level to the defendant’s impairment.
 
Shannon Campbell, et al. vs. Nathan Sharpe, et al. (June 27, 2008)(2008-Ohio-3163)
-  http://www.sconet.state.oh.us/rod/docs/pdf/1/2008/2008-ohio-3163.pdf
-  When a child injures another while riding his bicycle, the parents of the child are not liable absent a showing of prior conduct sufficient to put the parents on notice that the child posed a danger to others. The trial court properly entered summary judgment for the parents of a child who had injured the plaintiff while riding his bicycle in a park: The parents had not seen the child lose control of the bicycle in the two years prior to the accident, during which the child had regularly ridden in the park; and under these circumstances, the fact that the child had fallen from a bicycle years before was not enough to put the parents on notice that he posed a danger to others.
 
P. Robert Schwetschenau, M.D., et al. vs. Melvin Whitfield, M.D. (June 27, 2008)(2008-Ohio-3164)
-  http://www.sconet.state.oh.us/rod/docs/pdf/1/2008/2008-ohio-3164.pdf
-  The trial court did not err in holding that the plaintiffs could seek contribution from one of five co-makers of a promissory note who had allegedly not paid his proportionate share of the loan indebtedness: under R.C. 1303.14(B) and the common law, a co-maker of a note that provides for joint and several liability may seek contribution in the form of proportionate reimbursement from another co-maker for money paid towards the note. The trial court erred in awarding the plaintiffs a proportionate share of the money paid on a note by a corporation in which they were shareholders: a corporation is considered a separate “person” under the law, and a co-maker shareholder may not personally recover in contribution payments made on a loan by the corporation.
 
John Blust, Ruby Blust vs. City of Blue Ash, Ohio (June 27, 2008)(2008-Ohio-3157)
-  http://www.sconet.state.oh.us/rod/docs/pdf/1/2008/2008-ohio-3157.pdf
-  The trial court correctly entered summary judgment for a city that had denied the plaintiffs’ application to change the zoning designation of their property from residential to commercial: even though there were business uses around the plaintiffs’ property, the property immediately to the south remained residential, and the city’s decision to prevent further encroachment of business uses was not unconstitutionally arbitrary. [But, see, DISSENT: The prevalence of business uses surrounding the plaintiffs’ property rendered the residential designation unconstitutionally arbitrary as applied; and to use the plaintiffs’ property as a cut-off line to preserve the residential area to the south was absurd, when there were only five or six houses between the Blust property and a creek bed.] The trial court did not err in rejecting the plaintiffs’ claim that the city had taken their property: although business uses would have arguably been more valuable, the property’s use for residential purposes remained viable, as evidenced by the property’s rental history and its continued appreciation in value. The trial court properly rejected the plaintiffs’ claims that the city had violated their rights to due process and to equal protection of the law: the plaintiffs were represented by counsel and were given a full and fair opportunity to present their case, and the city had not acted arbitrarily in selecting the plaintiffs’ property as the boundary between residential and business uses.
 
City of Cincinnati Ex Rel., Joseph Zimmer and Anthony Brice vs. City of Cincinnati, et al. (June 27, 2008)(2008-Ohio-3156)
-  http://www.sconet.state.oh.us/rod/docs/pdf/1/2008/2008-ohio-3156.pdf
-  Enforcement of the prevailing-wage law involves a public right and, therefore, is properly the subject of a taxpayer suit. Even though taxpayers in a taxpayer suit were also union officials, their union status did not render them one and the same as their union, and they were not interested parties under R.C. 4511.03(F) who could have availed themselves of the remedies in the prevailing-wage law. Individual taxpayers who were not interested parties as defined in R.C. 4511.03(F) could bring a taxpayer suit under R.C. 733.56 and 733.59 to enforce the prevailing-wage law.
  

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

 

No Opinions.
 

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

 

Assoc Indust KY v. US Liab Ins Grp (June 27, 2008)(Appeal from W.D. KY)
-  http://www.ca6.uscourts.gov/opinions.pdf/08a0229p-06.pdf
-  Plaintiff Associated Industries of Kentucky (“AIK”) appeals the grant of summary judgment in favor of defendant United States Liability Insurance Group (“U.S. Liability”). AIK sought a declaratory judgment ruling that U.S. Liability had a duty to defend AIK against several lawsuits in state court and a duty to cover any liabilities that might arise from the lawsuits. The district court held that U.S. Liability had no duty to defend AIK from the lawsuits, which arose from the operation of AIK’s group self-insurance fund, AIK Comp. A contractual provision stated that U.S. Liability had no duty to defend AIK against lawsuits arising out of the operation of “any insurance plan or program.” We agree with the district court that AIK Comp is an insurance program covered by the contractual exclusion provision and that U.S. Liability does not have a duty to defend AIK from the lawsuits in state court. Therefore, we AFFIRM.
 
Alliance Community v. FCC AND Villages of Larchmnt v. FCC
AND Natl Assoc of Cntys v. FCC AND NJ Pub Advocate v. FCC
AND National Assn Tele v. FCC AND Greater Metro v. FCC
AND City of Tampa FL v. FCC AND Natl Cbl Telecom v. FCC
AND Natl League Cities v. FCC AND US Conf of Mayors v. FCC
AND Alliance Comm v. FCC AND Fairfax Cty VA v. FCC
AND Arundel Cty MD v. FCC  (June 27, 2008)(Appeal from Federal Communications Commission)
-  http://www.ca6.uscourts.gov/opinions.pdf/08a0230p-06.pdf
-  Following a notice-and-comment rulemaking procedure, the Federal Communications Commission (“FCC,” “Commission,” or “the agency”) released an order (“the Order”) adopting rules interpreting and implementing section 621(a)(1) of the Communications Act of 1934 (“the Act”), 47 U.S.C. § 541(a)(1), which prohibits local franchising authorities from “unreasonably refus[ing] to award” competitive cable franchises. The FCC released the Order on March 5, 2007 on the basis of record evidence that the operation of the local franchising process was unreasonably impeding competitive entry into the cable television market. A summary of the Order was subsequently published in the Federal Register on March 21, 2007. Petitioners and intervenors, consisting primarily of various local franchising authorities (“LFAs”), their representative organizations, and the incumbent cable industry’s trade association, request us to reverse the FCC’s decision and declare the Order void in its entirety, asserting that the FCC lacks the requisite authority to promulgate the Order and, in the alternative, that the FCC’s interpretation is not entitled to deference and is arbitrary and capricious. For the following reasons, we find that the FCC acted well within its statutorily delineated authority in enacting the Order and that there exists sufficient record evidence to indicate that the FCC did not engage in arbitrary-andcapricious rulemaking activity. Accordingly, we DENY the petitions for review.
 
USA v. Houston (June 27, 2008)(Appeal from E.D. TN)
-  http://www.ca6.uscourts.gov/opinions.pdf/08a0231p-06.pdf
-  Defendant-appellant appeals from a judgment sentencing him to a prison term of twelve months and a day, followed by three years of supervised release. Appellant contends the district court erred by granting the government’s motion to strike its amended judgment of sentence, under which he had been sentenced to probation only. In addition, appellant contends the reinstated original sentence is procedurally and substantively unreasonable. Finding that the district court did not err by striking the amended judgment and that the sentence ultimately imposed is not unreasonable, we affirm the judgment of the district court.
 
Kirby v. St. Clair County (June 27, 2008)(Appeal from E.D. MI)
-  http://www.ca6.uscourts.gov/opinions.pdf/08a0232p-06.pdf
-  Defendant police officers bring this interlocutory appeal from the district court’s denial of their motion for summary judgment on grounds of qualified immunity. Plaintiffs, Thomas Kirby’s widow and estate, filed this § 1983 excessive force action after defendants fatally shot Kirby as he tried to flee a traffic stop. Because it was clearly established at the time of the shooting that deadly force could not be used against a non-dangerous fleeing felon, qualified immunity was properly denied on the facts as presented in this case.
 
USA v. McConer (June 27, 2008)(Appeal from E.D. MI)
-  http://www.ca6.uscourts.gov/opinions.pdf/08a0233p-06.pdf
-  Arone McConer appeals his criminal conviction and sentence. McConer and a handful of other individuals were present at 4062 Lawrence Street in Detroit, Michigan, when the apartment was raided by police. Narcotics and weapons were found in the apartment, and McConer was charged in state court with possession with intent to deliver both cocaine and marijuana, felon in possession of a firearm, and habitual felony firearm. The State informed him that if he pled guilty as charged, his case would not be referred for federal prosecution. McConer did not plead guilty, however, and the State dismissed its case when a criminal complaint was filed against McConer by the federal government. On this appeal from his federal conviction, McConer argues that the district court misinterpreted its authority to remedy the errors McConer perceived in his state proceedings; that his statements to one of the police officers were introduced in violation of Miranda; that his right to a fair trial was violated by the introduction of prejudicial evidence in violation of the district court’s exclusion orders; and that his sentence is procedurally and substantively unreasonable. Because reversal is not warranted by any of McConer’s arguments, we affirm his conviction. The district court misstated its sentencing standard, however, and we vacate McConer’s sentence and remand for resentencing under the proper standard.