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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Feb. 2nd - 4th, 2009

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

TOPICS:
- Unauthorized practice of law
- Contracts / Mortgages / Residential mortgage loan agreement
- Writ of mandamus / Disability-retirement benefits
- Habeas corpus
- Criminal law / Witness intimidation
- Lis pendens / Multiple-defendant action involving property
- Criminal law / Right to counsel waived
- Criminal law / Sixth Amendment / Opportunity to cross-examine
- Criminal law — Extraterritorial traffic stop
- Attorney misconduct
- Juvenile / Violation Community control
- Appellate procedure / Notice of appeal filed with clerk
- Divorce /  Pension division / Coverture formula
- Domestic-violence statute / Evidence / Sufficiency / Manifest weight
- Declaratory Judgment Act / Tax Injunction Act
- Withdrawal of Guilty Plea / Sentence Reasonableness
- Petition for Rehearing denied / Contract dispute
- United States Sentencing Guidelines / Career offender
- Clean Water Act
- EVidence / Spoliation sanctions
- IRS / Civil investigation / Suppress evidence
 

Ohio Supreme Court

 

Cleveland Metro. Bar Assn. v. Boyd (Slip Opinion)(Feb. 3, 2009)(2009-ohio-305)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2009/2009-ohio-305.pdf
-  Unauthorized practice of law — Injunctive relief and civil penalties.

Wilborn v. Bank One Corp. (Slip Opinion)(Feb. 3, 2009)(2009-ohio-306)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2009/2009-ohio-306.pdf
-  Contracts — Mortgages — Residential mortgage loan agreement — Provision requiring defaulting borrower to pay lender’s reasonable attorney fees as condition for terminating foreclosure proceedings and reinstating loan is not against public policy or statutory or decisional law.

State ex rel. Marchiano v. School Emps. Retirement Sys. (Slip Opinion)(Feb. 3, 2009)(2009-ohio-307)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2009/2009-ohio-307.pdf
-  Appeal from court of appeals’ judgment denying writ of mandamus to compel SERS to vacate its decision denying disability-retirement benefits — Court of appeals’ judgment affirmed.

Briseno v. Cook (Slip Opinion)(Feb. 3, 2009)(2009-ohio-308)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2009/2009-ohio-308.pdf
-  Habeas corpus — Writ not available when petitioner had adequate remedy by way of direct appeal — Writ denied.

Ohio State Bar Assn. v. Jackim (Slip Opinion)(Feb. 3, 2009)(2009-ohio-309)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2009/2009-ohio-309.pdf
-  Unauthorized practice of law — Preparing and filing a document on behalf of another — Further violations enjoined — No civil penalty imposed.

State v. Malone (Slip Opinion)(Feb. 3, 2009)(2009-ohio-310)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2009/2009-ohio-310.pdf
-  Criminal law — Witness intimidation — A conviction for witness intimidation under R.C. 2921.04(B) is not sustainable when the intimidation occurred after the criminal act but prior to any proceedings flowing from the act in court.

Beneficial Ohio, Inc. v. Ellis (Slip Opinion)(Feb. 3, 2009)(2009-ohio-311)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2009/2009-ohio-311.pdf
-  Former R.C. 2703.26 — Lis pendens — Multiple-defendant action involving property — Under former R.C. 2703.26, a person who seeks to acquire an interest in property is charged with notice of a pending action regarding the property when any defendant to the action is served with summons.

State v. Thompson (Slip Opinion)(Feb. 4, 2009)(2009-ohio-314)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2009/2009-ohio-314.pdf
-  Criminal law — Penalty enhancements under R.C. 4511.19 — Defendant must present prima facie case that prior convictions were unconstitutional before burden shifts to state to show that right to counsel was properly waived — Judgment reversed.

State v. Pasqualone (Slip Opinion)(Feb. 4, 2009)

-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2009/2009-ohio-315.pdf
-  Criminal law — Sixth Amendment — R.C. 2925.51 — Attorney may waive a client’s Sixth Amendment right to confrontation — When the state has complied with its obligations under R.C. 2925.51, a defendant’s failure to use the procedures of R.C. 2925.51(C) to demand that a laboratory analyst testify constitutes a waiver of the opportunity to cross-examine the analyst at trial and allows the analyst’s report to be admitted as prima facie evidence of the test results.

State v. Jones (Slip Opinion)(Feb. 4, 2009)(2009-ohio-316)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2009/2009-ohio-316.pdf
-  Criminal law — Extraterritorial traffic stop — A law-enforcement officer who personally observes a traffic violation while outside the officer’s statutory territorial jurisdiction has probable cause to make a traffic stop; the stop is not unreasonable under the Fourth Amendment to the United States Constitution.

Disciplinary Counsel v. Kelly (Slip Opinion)(Feb. 4, 2009)(2009-ohio-317)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2009/2009-ohio-317.pdf
-  Attorney misconduct — Engaging in conduct involving fraud, deceit, dishonesty, or misrepresentation — Engaging in conduct that adversely reflects on fitness to practice law — Practicing law while employed as a magistrate — Indefinite suspension.

In re J.F. (Slip Opinion)(Feb. 4, 2009)(2009-ohio-318)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2009/2009-ohio-318.pdf
-  A court may order a juvenile to serve a previously suspended commitment after probation supervision has been terminated when the juvenile violates a separate, unexpired condition of community control.

Louden v. A.O. Smith Corp. (Slip Opinion)(Feb. 4, 2009)(2009-ohio-319)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2009/2009-ohio-319.pdf
-  Appellate procedure — Notice of appeal — Electronic filing — Unless local rule expressly permits electronic filing of notice of appeal, paper copy of notice of appeal must be filed with clerk of trial court pursuant to App.R. 3.
 

First District Court of Appeals

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*** Judgment Entries ***

Kathryn Streicher vs. Thomas H. Streicher (Feb. 4, 2009)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-080395_02042009.pdf
-  Kathryn Streicher and defendant-appellee Thomas Streicher were married in July 1976 and divorced in March 2001. The trial court concluded that the parties had unambiguously agreed to divide the accumulated benefits of the deferred-compensation and pension funds from July 3, 1976, to October 1, 1998. Kathryn contests that determination, arguing that the parties had agreed to use the coverture method of valuation found in R.C. 3105.82(D), and that the language in the agreed entry should have been interpreted to reflect the parties’ intent. Not so—the language used in the divorce decree and the agreed entry of property division cannot be reasonably interpreted to support Kathryn’s argument. Because the language is plain and unambiguous, the judgment of the trial court is affirmed. In her appeal, Kathryn advances the following assignments of error: the trial court erred (1) in denying her motion for contempt and in failing to construe the language of the parties’ divorce decree in a manner consistent with the special meaning that the parties attached to the words contained in the decree; (2) in failing to find ambiguity in the divorce decree; and (3) in distributing the parties’ assets in an inequitable manner that was contrary to the divorce decree. Judgment AFFIRMED.

State of Ohio vs. William E. Jones (Feb. 4, 2009)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-080144_02042009.pdf
-  Jones appeals the judgment of the Hamilton County Municipal Court convicting him of domestic violence. Jones now argues that the conviction was based on insufficient evidence and was against the manifest weight of the evidence. Judgment AFFIRMED.
 

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

 

Commerce Energy, Inc. v. Richard Levin (Feb. 4, 2009) (Appeal from S.D. OH)
-  http://www.ca6.uscourts.gov/opinions.pdf/09a0036p-06.pdf
-  Plaintiffs, in-state and out-of-state retail natural gas suppliers that market and sell natural gas to Ohio consumers and one of their Ohio customers, sued Ohio’s Tax Commissioner, Richard Levin. They alleged that Ohio’s tax scheme is discriminatory and thus unconstitutional under either the Commerce Clause or Equal Protection Clause because four local natural gas distribution companies benefit from certain tax exemptions and exclusions that they do not benefit from, despite their similar situations. But the district court granted the Commissioner’s motion to dismiss for lack of subject matter jurisdiction, reasoning that, while the Tax Injunction Act, 28 U.S.C. § 1341, did not bar plaintiffs’ claims, general principles of comity and federalism did. This latter conclusion was incorrect, and we therefore reverse and remand.

USA v. Stephanie Woods (Feb. 4, 2009) (Appeal from S.D. OH)
-  http://www.ca6.uscourts.gov/opinions.pdf/09a0037p-06.pdf
-  Stephanie Woods pleaded guilty to conspiracy to commit money laundering arising out of a mortgage fraud scheme and willful failure to file income tax returns. The district court judge sentenced Woods to 30 months’ imprisonment on the money laundering count (Count One) and 12 months’ imprisonment for the tax counts (Counts Two through Six) to be served concurrently. On appeal, Woods argues that: (1) she was entitled to an evidentiary hearing to determine whether her plea agreement resulted from coercion or undue influence; and (2) her sentence is unreasonable. For the following reasons, we affirm the judgment of the district court.
      

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

 

Robert Langley v. Prudential Mortgage Capital Co (Feb. 3, 2009) (Appeal from E.D. KY)
-  http://www.ca6.uscourts.gov/opinions.pdf/09a0033p-06.pdf
-  The petition for rehearing is denied. The district court’s order below was explicitly based in part on the invalidity of the forum selection clause. As explained in the per curiam opinion, that analysis was not correct, and the preliminary injunctive relief based on that analysis was therefore reversed. Rehearing is accordingly not warranted.

USA v. Malik Hawkins (Feb. 4, 2009) (Appeal from E.D. KY)
-  http://www.ca6.uscourts.gov/opinions.pdf/09a0034p-06.pdf
-  On May 3, 2007, a grand jury issued an indictment alleging that defendant Hawkins had conspired to distribute and had distributed quantities of powder and crack cocaine. At the time of the indictment, Hawkins had two prior felony convictions, one of which was for possession of an unregistered firearm. Hawkins entered a plea agreement, pleading guilty to conspiring to distribute cocaine base in violation of 21 U.S.C. § 846 and reserving the right to appeal the court's potential classification of him as a career offender under U.S.S.G. § 4B1.1. Prior to sentencing, he filed an objection in which he argued that his conviction for possession of an unregistered firearm was not a “crime of violence” within U.S.S.G. § 4B1.1. J.A. at 67. Relying on the commentary to U.S.S.G. § 4B1.2 and rulings from our sister circuits, the district court overruled Hawkins’ objection and applied the career offender enhancement, sentencing Hawkins to two hundred sixty-two (262) months of imprisonment. Hawkins timely appealed the career offender enhancement.

USA v. Cundiff (Feb. 4, 2009) (Appeal from W.D. KY)
-  http://www.ca6.uscourts.gov/opinions.pdf/09a0035p-06.pdf
-  After eight years of failed negotiations and ignored orders, the United States sued George Rudy Cundiff (who goes by Rudy) and his son, Christopher Seth Cundiff (who goes by Seth), seeking injunctive relief and civil penalties against them for discharging “pollutants” into “waters of the United States” without a permit in violation of the Clean Water Act. 33 U.S.C. § 1362. The district court granted summary judgment for the governmeimposed injunctive relief in the form of a restoration plan for the Cundiffs’ wetlands, and imposed a civil penalty of $225,000. All but $25,000 of that penalty was suspended, however, provided that the Cundiffs implemented the restoration plan. The district court also dismissed the Cundiffs’ array of statutory, common law, and constitutional counterclaims. While the original appeal in this case was pending, the Supreme Court issued its splintered ruling in Rapanos v. United States, 547 U.S. 715 (2006), which defined the Act’s jurisdiction over “waters of the United States.” In light of Rapanos, we returned the case to the district court to reconsider whether jurisdiction was proper over the Cundiffs’ wetlands. The district court determined that it was because the Cundiffs’ wetlands were in fact waters of the United States, and the Cundiffs appealed. We affirm the district court on all grounds.

Adkins v. Wolever (Feb. 4, 2009) (Appeal from W.D. MI)
-  http://www.ca6.uscourts.gov/opinions.pdf/09a0038p-06.pdf
-  We reheard this case en banc to resolve a choice-of-law question: Does state law control a federal court’s imposition of sanctions as relief for spoliated evidence? The original panel, constrained by our earlier opinions that applied state law to determine whether spoliation sanctions were available, (see, e.g., Beck v. Haik, 377 F.3d 624, 641 (6th Cir. 2004); Nationwide Mut. Fire Ins. Co. v. Ford Motor Co., 174 F.3d 801, 804 (6th Cir. 1999); Welsh v. United States, 844 F.2d 1239, 1245 (6th Cir. 1988)), affirmed the district court’s denial of sanctions because applicable state law did not provide for sanctions based on third-party spoliation. Adkins v. Wolever, 520 F.3d 585, 587 (6th Cir. 2008) (citing Salmi v. Sec’y of Health & Human Servs., 774 F.2d 685, 689 (6th Cir. 1985)). We granted rehearing en banc to bring our case law in line with other courts of appeals. We now recognize—as does every other federal court of appeals to have addressed the question—that a federal court’s inherent powers include broad discretion to craft proper sanctions for spoliated evidence. To the extent that our earlier opinions held otherwise, we overrule them. Accordingly, we VACATE the judgment of the district court and REMAND for consideration of what, if any, spoliation sanctions are appropriate in this case. If the district court determines that sanctions are warranted under federal law, it must also decide whether the earlier denial of spoliation sanctions is ground for granting Adkins a new trial or was instead harmless error. See FED. R. CIV. P. 61.

USA v. Jon Rutherford AND
USA v. Judith Bugaiski (Feb. 4, 2009) (Appeal from E.D. MI)
-  http://www.ca6.uscourts.gov/opinions.pdf/09a0039p-06.pdf
-  Defendants Jon Rutherford and Judith Bugaiski were charged with numerous tax violations and conspiracy to defraud investigators from the Internal Revenue Service (IRS). The United States appeals the district court’s suppression of certain statements and documents obtained pursuant to an allegedly improper civil investigation. In short, though government misconduct is regrettable, whether engaged in deliberately or, as here, merely negligently, the misconduct at issue in this case simply does not “shock[] the conscience.” Rochin v. California, 342 U.S. 165, 172 (1952). If a remedy does exist, it is not one this court may impose by application of the exclusionary rule. We therefore REVERSE the district court’s pre-trial motion suppressing statements and documents and REMAND for further proceedings consistent with this opinion.

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