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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March 23rd, 24th, & 25th, 2009

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

TOPICS:
- Civil Action / Vexatious litigator
- Workers’ compensation / Compensation for temporary total disability
- Appellate procedure / Final orders
- Divorce / Modification of spousal support
- Attorneys Misconduct
- Corporation’s veil
- Political subdivision tort liability
- Real Property valuation
- Divorce / Division of property / Abuse of discretion
- Crimial Rule / Withdraw plea
- Anders v. California / Frivolous Appeal
- Divorce / Spousal support / Attorney Fees
- Personal Injury / Duty of care
- Speedy Trial
- Motor Vehicle / Evidence / Manifest weight
- Sentencing / Post-release control
- Bankruptcy / Dissolution / Standard of review
- Pedophiles / Sentencing Guidelines / Victim-age enhancement
- Motion for new counsel / Sufficiency evidence / Jury instructions / Sentencing
- Collateral-order doctrine / Jurisdiction / Abuse of discretion / Professional conduct
- Writ of habeas corpus / Due Process / In Custody
- Immigration removal / Petition for review / Asylum
- Sentencing
 

Ohio Supreme Court

 

Baumgartner v. Duffey (Slip Opinion)(March 24, 2009)(2009-Ohio-1218)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2009/2009-ohio-1218.pdf
-  Vexatious litigators — R.C. 2323.52 — Failure to obtain leave of court before filing petition for writ of habeas corpus — Denial of writ affirmed.

State ex rel. DaimlerChrysler Corp. v. Indus. Comm. (Slip Opinion)(March 24, 2009)(2009-Ohio-1219)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2009/2009-ohio-1219.pdf
-  Workers’ compensation — Compensation for temporary total disability — Permanent inability to return to former position of employment—Maximum medical improvement — R.C. 4123.56(A).

State ex rel. Metcalfe v. Indus. Comm. (Slip Opinion)(March 24, 2009)(2009-Ohio-1220)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2009/2009-ohio-1220.pdf
-  Workers’ compensation — Violation of specific safety requirement — Ohio Adm.Code 4123: 1-5-05(D)(2) — Commission’s denial of award upheld.

Walburn v. Dunlap (Slip Opinion)(March 24, 2009)(2009-Ohio-1221)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2009/2009-ohio-1221.pdf
-  Appellate procedure — Final orders — Declaratory judgment on liability not appealable while issue of damages is pending.

Mandelbaum v. Mandelbaum (Slip Opinion)(March 24, 2009)(2009-Ohio-1222)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2009/2009-ohio-1222.pdf
-  Divorce — Modification of spousal support — Continuing jurisdiction — R.C. 3105.18 — Change in circumstances needed to modify support order must be a substantial change.

Mahoning Cty. Bar Assn. v. Palombaro (Slip Opinion)(March 24, 2009)(2009-Ohio-1223)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2009/2009-ohio-1223.pdf
-  Attorneys — Misconduct — Multiple Disciplinary Rule violations, including aiding nonlawyers in the unauthorized practice of law and failing to maintain client funds in a separate account — One-year suspension stayed on conditions.

Minno v. Pro-Fab (Slip Opinion)(March 25, 2009)(2009-Ohio-1247)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2009/2009-ohio-1247.pdf
-  A corporation’s veil may not be pierced in order to hold a second corporation liable for the corporate misdeeds of the first when the two corporations have common individual shareholders but neither corporation has any ownership interest in the other corporation.

Torchik v. Boyce (Slip Opinion)(March 25, 2009)(2009-Ohio-1248)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2009/2009-ohio-1248.pdf
-  Torts — Premises liability — Fireman’s rule inapplicable to protect independent contractor.

Cincinnati Bar Assn. v. Brown (Slip Opinion)(March 25, 2009)(2009-Ohio-1249)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2009/2009-ohio-1249.pdf
-  Attorney uct involving dishonesty, fraud, deceit, or misrepresentation, failing to act with diligence in representing a client, and failing to cooperate in the investigation of misconduct — Indefinite suspension.

Moore v. Lorain Metro. Hous. Auth. (Slip Opinion)(March 25, 2009)(2009-Ohio-1250)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2009/2009-ohio-1250.pdf
-  Political subdivisions — Immunity from suit — R.C. Chapter 2744 — Metropolitan housing authority is a “political subdivision” for purposes of sovereign immunity — R.C. 2744.01(C)(1) — Operation of metropolitan housing authority is governmental function.
 

First District Court of Appeals

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*** Judgment Entries ***

Joe M. Agapay, Jr., Trustee vs. Board of Revision of Hamilton County, Ohio, et al. (March 25, 2009)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-080491_03252009.pdf
-  Defendant-appellant, Hamilton County Auditor Dusty Rhodes, appeals the judgment of the court of common pleas establishing the value of real property owned by plaintiff-appellee, Joe M. Agapay, Jr., Trustee. Agapay cross-appeals. Judgment AFFIRMED.

Barbara A. Kohmescher vs. Paul H. Kohmescher (March 25, 2009)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-080391_03252009.pdf
-  Plaintiff-appellant Barbara A. Kohmescher filed for divorce on June 3, 2005. The couple had been living apart since defendant-appellee Paul H. Kohmescher left the marital home on December 31, 2003. During the course of the litigation below, the issues of child custody and child and spousal support were settled by agreement, and only the property issues remained for trial. After several days of hearings, the magistrate decided that the marriage had effectively ended on August 1, 2004, and reached a decision on the property issues. The trial court adopted the decision. Barbara appeals, raising six assignments of error. Judgment AFFIRMED.

State of Ohio vs. Richard Carter (March 25, 2009)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-080337_03252009.pdf
-  In the appeal numbered C-080337, defendant-appellant Richard Carter appeals from the trial court’s March 18, 2008, denial of his postsentence motion to withdraw his guilty plea to one count of felonious assault in violation of R.C. 2903.11(A)(2). Carter had agreed to plead guilty to the felonious-assault count in exchange for the state’s dismissal of two related counts. The trial court accepted the plea and imposed an agreed sentence of four years’ incarceration. Carter argues that the trial court erred in denying his Crim.R. 32.1 motion to withdraw his guilty plea on the ground that the plea had been coerced. Deny of motion AFFIRMED.

State of Ohio vs. Christopher Marten (March 25, 2009)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-080297_03252009.pdf
-  Marten appeals his conviction for one count of assault on a police officer, one count of failure to comply, and one count of obstructing official business. Marten contends that his sentence was unreasonable and excessive. Counsel now requests that this court independently examine the record to determine whether the appeal is wholly frivolous. Judgment AFFIRMED.

Pamela L. McBride vs. Dennis McBride, Jr. (March 25, 2009)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-080287_03252009.pdf
-  Defendant-appellant Dennis McBride appeals from an entry of the Domestic Relations Division of the Hamilton County Common Pleas Court, modifying a magistrate’s decision and awarding spousal support and attorney fees to plaintiff-appellee Pamela McBride. Judgment AFFIRMED in Part and award of attorney fees REVERSED.

Holly A. Best, et al. vs. BSF III - B.L.L.C., et al. (March 25, 2009)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-080250_03252009.pdf
-  Plaintiffs-appellants, Holly A. Best and Wayne D. Best, sued the following defendants-appelles: (1) BSF III-B, L.L.C. (“BSF”), (2) Jones, Lang, LaSalle, Americas, Inc., d.b.a. N.A.I. Eagle (“Jones., d.b.a. Amtech Elevator Services (“Amtech”). They alleged that, due to the defendants’ negligence, Holly Best had been injured while riding in an elevator that had come to a sudden stop. Following a jury trial, the trial court entered judgment in favor of all defendants. Bests now appeal the judgment for the defendants and the denial of their post-trial motions. Judgment AFFIRMED.

State of Ohio vs. Ean D. Siemer (March 25, 2009)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-080103_03252009.pdf
-  Plaintiff-appellant the State of Ohio appeals from the judgment of the trial court dismissing a misdemeanor charge of operating a motor vehicle while intoxicated (“OVI”) against defendant-appellee Ean Siemer, for lack of a speedy trial under R.C. 2945.71. Judgment REVERSED and REMANDED with instructions for the court to overrule the motion to dismiss and for further proceedings consistent with this judgment entry and the law.

State of Ohio vs. Jonathan C. Thorpe (March 25, 2009)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-080079_03252009.pdf
-  Thorpe appeals from the judgments of the trial court convicting him of failure to display a driver’s license, failure to wear a seat safety belt, and driving under an OVI suspension. He contends that his convictions are against the manifest weight of the evidence. Judgment AFFIRMED.

State of Ohio vs. Michael McKinney (March 25, 2009)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-070811_03252009.pdf
-  McKinney appeals from the trial court’s nunc pro tunc entry imposing a sentence of incarceration and post-release control. Judgment AFFIRMED.
 

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

 

Moran v. LTV Steel Co (March 23, 2009) (Appeal from N.D. OH)
-  http://www.ca6.uscourts.gov/opinions.pdf/09a0109p-06.pdf
-  LTV Steel Company, Inc. filed for Chapter 11 bankruptcy protection in 2000. The United States Trustee for the Northern District of Ohio appointed the Official Committee of Administrative Claimants (ACC) to represent the interests of those creditors holding administrative claims. A Standing Order was entered by the bankruptcy court granting the ACC authority to bring a lawsuit against certain officers and directors of LTV Steel, including the appellants in this case. In response, all of the appellants other than Moran filed a motion in the bankruptcy court seeking dissolution of the ACC. The bankruptcy court denied their motion. Moran pursued a more direct approach by appealing the Standing Order to the district court. The district court ruled against Moran. It also ruled against the other appellants who had appealed the denial of their motion to dissolve the ACC. Following the district court’s dismissal of their respective appeals, the appellants now seek review in this court. For the reasons set forth below, we AFFIRM the judgment of the district court.

USA v. Angwin (March 25, 2009) (Appeal from N.D. OH)
-  http://www.ca6.uscourts.gov/opinions.pdf/09a0114p-06.pdf
-  Defendant Angwin was arrested as part of an FBI internet sting to catch pedophiles. Angwin communicated with an undercover agent, who posed as a mother of two daughters whom she offered up for sex with Angwin. One of the fictional daughters was 7 years old. Angwin traveled from Delaware to Ohio to meet and engage in sexual activity with all three fictional females. Angwin was indicted and pled guilty to three counts of illegal sexual conduct. In determining Angwin’s sentence, the district court applied a 4-level sentencing enhancement because one of Angwin’s victims was under the age of 12. Angwin appeals the application of that enhancement arguing that because the undercover agent never posed as the 7-year-old daughter, there was no victim under 12. Because the enhancement can apply when an officer creates a fictional minor victim, even though the officer did not pretend to be that victim, the district court properly applied the enhancement. The judgment of the district court is affirmed.
 

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

 

USA v. Vasquez (March 23, 2009) (Appeal from E.D. MI)
-  http://www.ca6.uscourts.gov/opinions.pdf/09a0110p-06.pdf
-  Alfredo DeLaPaz Vasquez appeals his convictions and sentencing in the district court. After Vasquez was arrested in 2001 in an undercover narcotics investigation, he fled the jurisdiction. He was apprehended again in 2006. A jury then convicted Vasquez of (1) conspiracy to possess with intent to distribute more than five kilograms of cocaine, and (2) aiding and abetting in the distribution of 500 grams or more of cocaine. He was sentenced to 240 months of imprisonment on each count, to be served concurrently, and to four years of supervised release. Vasquez contends on appeal that the district court committed reversible errors during his trial and sentencing. For the reasons set forth below, we AFFIRM the judgment of the district court.

Douglas Brandon v. Richard Blech (March 24, 2009) (Appeal from E.D. KY)
-  http://www.ca6.uscourts.gov/opinions.pdf/09a0111p-06.pdf
-  Proskauer Rose LLP (“Proskauer”) represents Richard Blech in a civil suit. Proskauer sought overdue legal fees from Blech, who refused to pay, and Proskauer moved to withdraw as his counsel. The district court denied Proskauer’s motion, effectively compelling the firm to continue its representation without compensation. Proskauer appealed and we reverse, holding that the district court abused its discretion.

Lawrence v. 48th Dist Ct (March 24, 2009) (Appeal from E.D. MI)
-  http://www.ca6.uscourts.gov/opinions.pdf/09a0112p-06.pdf
-  Frank J. Lawrence, Jr., filed a petition for a writ of habeas corpus in federal district court after the 48th District Court in Bloomfield Township, Michigan convicted him of interference with a police officer in the discharge of his duties. The district court denied Lawrence’s petition. For the reasons that follow, we affirm the judgment of the district court.

Bi Feng Liu v. Eric H. Holder, Jr. (March 24, 2009) (Appeal from Board of Immigration Appeals )
-  http://www.ca6.uscourts.gov/opinions.pdf/09a0113p-06.pdf
-  Bi Feng Liu, a native and citizen of China, was ordered removed by an Immigration Judge (IJ). He subsequently filed a motion to reopen proceedings based upon changed country conditions and changed personal conditions. The IJ denied Liu’s motion, and the Board of Immigration Appeals (BIA) affirmed the IJ’s denial of the motion without a hearing. Liu petitions for review of the BIA’s decision, arguing that the BIA (1) abused its discretion in finding that he failed to show changed country conditions, (2) erred in determining that Liu was ineligible to file a successive asylum application based upon changed personal circumstances, and (3) erred in failing to consider whether Liu qualified for relief under the Convention Against Torture. Because the BIA acted within its discretion, we DENY Liu’s petition for review.

USA v. Recla (March 25, 2009) (Appeal from W.D. MI)
-  http://www.ca6.uscourts.gov/opinions.pdf/09a0115p-06.pdf
-  Defendant, Roy Stephen Recla, appeals the sentence of the district court imposed following his plea of guilty to one count of intentionally and unlawfully conspiring to distribute and to possess with intent to distribute oxycodone in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(C). Recla contends that, in imposing sentence, the district court improperly considered the possibility that his sentence would be reduced by a future Rule 35(b) motion. Recla also argues that his sentence is procedurally unreasonable because the district court failed to consider his argument that the court should reduce his sentence to account for the time he spent in state custody. Finally, Recla asserts that his sentence is “too severe” and, thus, substantively unreasonable because his sentence would have been lower had the district court properly evaluated his arguments. For the reasons set forth below, we VACATE Recla’s sentence and REMAND for resentencing.
 

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