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. 12th - 18th, 2009

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

TOPICS:
- Attorney Misconduct
- Real property taxation / Charitable-use exemption
- Taxation / Personal property
- Workers’ compensation / Violation of specific safety requirement
- Public Records
- Mandamus / Reinstate disability-retirement benefits
- Double Jeopardy Clauses
- Restitution order / Final Order / Appeal dismissed
- Foreclosure / Appointing a Receiver
- Motion to withdraw guilty plea
- Evidence / Insufficient / Manifest weight
- Motion to suppress / Initial stop prolonged / Search and Seizure
- Sentencing Guidelines / Supervised-release Revoked / Failure-to-notify violation
- Employment Age Discrimination / Civil rights retaliation claim
- Immigration and Nationality Act / Deportation / Requested for relief
- Licensing requirements for sexually oriented businesses
- Putative class action / Real Estate Settlement and Procedures Act
- Preliminary injunction / Scrap dealer “Tag and hold” ordinance / Interstate commerce
- Federal Arbitration Act / Contracts’ forum selection clause / Foreign antisuit injunction
- Eighth Amendment / Qualified immunity / Gross negligence / Tort liability
- Black Lung Benefits  / Workers Compensation
- National Labor Relations Act / Collective-bargaining agreement / Strike / Fired
 

Ohio Supreme Court

 

In re Application of Acton (Slip Opinion)(Feb. 12, 2009)(2009-ohio-499)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2009/2009-ohio-499.pdf
-  Attorneys — Examination of character and fitness — Record of traffic and other misdemeanor convictions — Reapplication allowed on conditions.

Disciplinary Counsel v. Davis (Slip Opinion)(Feb. 12, 2009)(2009-ohio-500)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2009/2009-ohio-500.pdf
-  Attorney misconduct, including engaging in conduct involving fraud, deceit, dishonesty, or misrepresentation; engaging in conduct that adversely reflects on fitness to practice law; failing to carry out a contract of professional employment; and engaging in conduct prejudicial to the administration of justice — Two-year suspension with one year stayed on conditions.

Warren Cty. Bar Assn. v. Marshall (Slip Opinion)(Feb. 12, 2009)(2009-ohio-501)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2009/2009-ohio-501.pdf
-  Attorneys at law — Misconduct — Disbarment.

Lake Cty. Bar Assn. v. Troy (Slip Opinion)(Feb. 12, 2009)(2009-ohio-502)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2009/2009-ohio-502.pdf
-  Attorneys at law — Misconduct — Neglect of an entrusted legal matter — Failure to properly maintain client funds and records — One-year suspension with six months stayed — Restitution ordered.

Northeast Ohio Psych. Inst. v. Levin (Slip Opinion)(Feb. 17, 2009)(2009-ohio-583)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2009/2009-ohio-583.pdf
-  Real property taxation — Charitable-use exemption — Board of tax appeals acted reasonably and lawfully — Decision affirmed.

HealthSouth Corp. v. Levin (Slip Opinion)(Feb. 17, 2009)(2009-ohio-584)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2009/2009-ohio-584.pdf
-  Taxation — Personal property — R.C. 5711.26 — Application for final assessment requesting reduction in taxable value and refund — Deliberate or bad-faith reporting by taxpayer of fictitious assets does not bar refund of resultant overpayment of personal-property tax — R.C. 5711.26 requires refund of overpayment — Commissioner has no discretion to refuse based on taxpayer’s bad faith or lack of mistake — Estoppel does not apply to bar refund.

State ex rel. Shelly Co. v. Steigerwald (Slip Opinion)(Feb. 17, 2009)(2009-ohio-585)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2009/2009-ohio-585.pdf
-  Workers’ compensation – Violation of specific safety requirement – Former Ohio Adm.Code 4121:1-3-06(D)(2)( – Reverse alarm signal for mobile equipment with obstructed rear view – Lack of direct evidence that alarm was not working when claimant was struck and killed does not invalidate commission’s finding that alarm was not working – Commission has substantial leeway in evaluating evidence and drawing reasonable inferences therefrom.

State ex rel. Cincinnati Enquirer v. Heath (Slip Opinion)(Feb. 18, 2009)(2009-ohio-590)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2009/2009-ohio-590.pdf
-  Public Records — R.C. 149.43 — Mandamus claim not rendered moot by vacation of order sealing records in criminal case — Claim for attorney fees not moot.

State ex rel. Morgan v. State Teachers Retirement Bd. of Ohio (Slip Opinion)(Feb. 18, 2009)(2009-ohio-591)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2009/2009-ohio-513.pdf
-  Mandamus — Writ sought to compel State Teachers Retirement Board of Ohio to reinstate disability-retirement benefits — No abuse of discretion — Court of appeals’ denial of writ affirmed.

State v. Brewer (Slip Opinion)(Feb. 18, 2009)(2009-ohio-593)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2009/2009-ohio-593.pdf
-  When evidence admitted at trial is sufficient to support a conviction, but on appeal, some of that evidence is determined to have been improperly admitted, the Double Jeopardy Clauses of the United States and Ohio Constitutions will not bar retrial.
 

First District Court of Appeals

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*** Judgment Entries ***

Bayview Loan Servicing, LLC vs. Solomon Cook, et al. (Feb. 18, 2009)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-080532_02182009.pdf
-  In this appeal, we are asked to decide whether the trial court abused its discretion by appointing a receiver upon the request of a mortgagee in a foreclosure action. Judgment AFFIRMED.

State of Ohio vs. Douglas Bullocks (Feb. 18, 2009)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-080479_02182009.pdf
-  Bullocks challenges the trial court’s denial of his presentence motion to withdraw his guilty plea to two counts of trafficking in cocaine. Judgment AFFIRMED.

State of Ohio vs. Kevin Lawrence (Feb. 18, 2009)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-080336_02182009.pdf
-  Lawrence was convicted of murder with a firearm specification, felonious assault, and of having a weapon while under a disability. The trial court sentenced Lawrence to an aggregate term of 25 years to life in prison and “to make restitution.” But the court did not determine the amount of restitution. Lawrence has appealed this purported judgment of conviction. In this case, where the court’s order imposed restitution as part of the sentence but did not determine the amount of the restitution, the order did not fully determine the action. Thus, the order did not constitute a final order under R.C. 2505.02(B) and cannot be appealed at this time. This appeal is accordingly dismissed.

State of Ohio vs. Damien Cherry (Feb. 18, 2009)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-080267_02182009.pdf
-  Cherry was found guilty of felonious assault, having weapons under a disability, and receiving stolen property. Cherry was sentenced to a total of 15 years in prison. He argues that his convictions were based upon insufficient evidence and were against the manifest weight of the evidence. Judgment AFFIRMED.
 

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

 

USA v. Bell (Feb. 17, 2009) (Appeal from N.D. OH)
-  http://www.ca6.uscourts.gov/opinions.pdf/09a0058p-06.pdf
-  Defendant-Appellant Clarence Bell, III appeals the district court’s denial of his motion to suppress evidence obtained during a traffic stop. After Bell was pulled over for speeding, a drug-detection dog alerted to Bell’s vehicle, and a subsequent search of the vehicle revealed four bags containing crack cocaine. Bell was indicted on one count of possessing with intent to distribute 50 gramsase (crack) in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A). After the district court denied Bell’s motion to suppress, Bell pleaded guilty to the count alleged, but reserved his right to appeal the denial of the motion to suppress. On appeal, Bell argues that the district court erred in denying his motion because the officers ceased diligently pursuing the purpose of the initial stop without reasonable suspicion of drug activity. Because we conclude that Bell’s seizure was not unreasonably prolonged beyond the purposes of the initial stop, we AFFIRM the district court’s denial of the motion to suppress.
       

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

 

USA v. Miklos Kontrol (Feb. 12, 2009) (Appeal from W.D. MI)
-  http://www.ca6.uscourts.gov/opinions.pdf/09a0049p-06.pdf
-  Miklos Kontrol appeals the district court’s decision revoking his supervised release and imposing a 15-month prison sentence. We affirm.

Jarrett Hamilton v. General Electric Co. (Feb. 12, 2009) (Appeal from W.D. KY)
-  http://www.ca6.uscourts.gov/opinions.pdf/09a0050p-06.pdf
-  Plaintiff-Appellant, Jarrett Hamilton (“Hamilton”), appeals the district court’s grant of summary judgment to defendant appellee General Electric Company (“GE”). Hamilton, a former GE employee, alleges that he was terminated in retaliation for having filed an age-discrimination claim against GE with the Equal Employment Opportunity Commission (“EEOC”), and he appealsdismissal of claims he brought under the Kentucky Civil Rights Act. Ky. Rev. Stat. Ann. § 344.280(1). We REVERSE the district court’s grant of summary judgment and REMAND for further proceedings consistent with this opinion.

Ibrahim Koussan v. Eric H. Holder, Jr. (Feb. 12, 2009) (Appeal from Board of Immigration Appeals)
-  http://www.ca6.uscourts.gov/opinions.pdf/09a0051p-06.pdf
-  Petitioner Ibrahim Ali Koussan appeals from the denial of his request for a waiver of inadmissibility following the administrative determination that he should be removed to Lebanon, his native country. Before this court, Koussan contends that the denial of the waiver under the now-repealed section 212(c) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1182(c) (1994), was an unconstitutional denial of equal protection and due process and, alternatively, was based upon the erroneous conclusion that applicable statutes did not contain a ground of exclusion that was comparable to the ground on which the petitioner’s order of removal was based.1 Koussan further asserts that the Board of Immigration Appeals (BIA) erred by designating only a single member – rather than a three-member panel – to hear the administrative appeal. For the reasons set out below, we find these issues to be without merit and, therefore, deny the petition for review.

Richland Bookmart, Inc. v. Knox County, Tennessee (Feb. 12, 2009) (Appeal from E.D. TN)
-  http://www.ca6.uscourts.gov/opinions.pdf/09a0052p-06.pdf
-  Three sexually oriented businesses, Richland Bookmart, Inc., Adult Video Superstore, Inc., and Raymond’s Place filed suit to challenge the constitutionality of a Knox County Ordinance that establishes licensing requirements and regulations for sexually-oriented businesses. With regard to the issues presented by Plaintiffs’ appeal, we affirm the district court’s decision; with regard to the cross-appeal, we reverse the order to sever.

Stephen Egerer v. Woodland Realty, Inc.(Feb. 12, 2009) (Appeal from W.D. MI)
-  http://www.ca6.uscourts.gov/opinions.pdf/09a0053p-06.pdf
-  Plaintiffs Stephen Egerer, Stephanie Egerer, and Kathy Boyink brought this putative class action suit against defendants Woodland Realty, Inc., Woodland Title Agency, LLC, Chicago Title Insurance Company, and Chicago Title of Michigan, Inc., alleging that defendants violated the Real Estate Settlement and Procedures Act of 1974, 12 U.S.C. § 2601, et seq. (“RESPA”), by paying and receiving unlawful referral fees for title insurance businesfavor of the defendants and the plaintiffs now appeal. For the reasons set forth below, we affirm the judgment of the district court.

Tennessee Scrap Recyclers Asso v. Phil Bredesen (Feb. 13, 2009) (Appeal from W.D. TN)
-  http://www.ca6.uscourts.gov/opinions.pdf/09a0054p-06.pdf
-  The Tennessee Scrap Recyclers Association and its co-plaintiffs, two scrap metal dealers in Memphis, Tennessee (collectively “the scrap dealers”), appeal the district court’s denial of their motion for a preliminary injunction to enjoin enforcement of a Memphis ordinance requiring scrap metal dealers to “tag and hold” the scrap metal they acquire for a period of ten days. The scrap dealers also appeal the district court’s denial of their motion for partial summary judgment on the constitutionality of the law. The scrap dealers argue that the “tag and hold” ordinance is unconstitutional in four ways: first, they argue that it violates the dormant commerce clause, either as a direct regulation of interstate commerce or an undue burden upon it; second, they argue that it takes property without just compensation; third, they argue that it takes property without procedural due process; and fourth, they argue that it violates federal law by restricting the use of legal tender and infringing upon the federal power to coin money. Because we find that none of the scrap dealers’ arguments is likely to succeed on the merits, and that they have not shown they are entitled to partial summary judgment, we AFFIRM.

Answers in Genesis of Kentucky v. Creation Ministries Internatio (Feb. 13, 2009) (Appeal from E.D. KY)
-  http://www.ca6.uscourts.gov/opinions.pdf/09a0055p-06.pdf
-  This appeal presents multiple issues of first impression for our circuit. Defendant-appellant Creation Ministries International, Ltd., (“CMI”) appeals the district court’s order compelling arbitration of its disputes with fellow ministry Answers in Genesis of Kentucky, Inc. (“AiG”). Specifically, CMI asserts that the district court erred in declining to dismiss AiG’s suit on the basis of the contracts’ forum selection clause, declining to abstain in favor of CMI’s prior-filed Australian litigation, and compelling arbitration on all of AiG’s claims. AiG crossappeals the district court’s order declining to issue a foreign antisuit injunction to block CMI from further pursuing its Australian litigation. We hold that the district court properly compelled the parties to arbitration and did not abuse its discretion in declining to issue an antisuit injunction based upon the facts as they now stand. We therefore affirm the judgment of the district court in its entirety.

Luis Dominguez v. Corr Medical Servs (Feb. 17, 2009) (Appeal from E.D. MI)
-  http://www.ca6.uscourts.gov/opinions.pdf/09a0056p-06.pdf
-  Plaintiff-Appellee Luis Dominguez filed his claims under 42 U.S.C. § 1983 alleging that on July 7, 2002, while housed at a Michigan Department of Corrections (“MDOC”) facility, he was subjected to excessive force and inadequate medical care in violation of the Eighth Amendment, as well as gross negligence under Michigan state law. The issue before this Court is whether the district court properly denied Defendant-Appellant Julie Fletcher’s motion for summary judgment. For the reasons set forth below, we AFFIRM the judgment of the district court.

Arch of Kentucky, Inc. v. Fred Hatfield (Feb. 17, 2009) (Appeal from Office of Workers Compensation Program)
-  http://www.ca6.uscourts.gov/opinions.pdf/09a0057p-06.pdf
-  Fred Hatfield filed for benefits under the Black Lung Benefits Act, 30 U.S.C. §§ 901-944 (“Act”). His last employer, Arch of Kentucky, Inc. (“Arch”), raised several challenges to his claim. Adjudicators for the U.S.Department of Labor’s Office of Workers’ Compensation Programs (“OWCP”) granted his claim and the Department’s Benefits Review Board (“BRB”) affirmed on appeal. Arch petitions this court to reverse. For the reasons set forth below, we affirm.

NLRB v. Jospital Corporation (Feb. 18, 2009) (Appeal from National Labor Relations Board)
-  http://www.ca6.uscourts.gov/opinions.pdf/09a0059p-06.pdf
-  In a previous proceeding, the National Labor Relations Board found that respondent Jackson Hospital Corporation, which does business as Kentucky River Medical Center, fired eight employees because of their union support and participation in a lawful strike, in violation of sections 8(a)(1) and (3) of the National Labor Relations Act. 29 U.S.C. § 158(a)(1), (3). Jackson Hosp. Corp., 340 N.L.R.B. 536 (2003), enforced, No. 04-1018, 2005 U.S. App. LEXIS 10450 (D.C. Cir. June 3, 2005). The Board now seeks to enforce its supplemental decision and order directing Jackson Hospital to pay specific backpay amounts to four of the eight discriminatees: Eileen Jewell, Debbie Miller, Lois Noble, and Maxine Ritchie. We ENFORCE the Board’s order.
 

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