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.

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

March 30th & April 1st, 2009

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

TOPICS:
- Elections
- Criminal law / Discovery
- Administrative procedure / Child Day-care
- Public employees / Disability retirement benefits
- Political subdivision immunity
- Attorney Misconduct
- Discretionary appeal
- Sentencing / Excessive / Mitigating factors
- Anders v. California / Frivolous appeal
- Ineffective assistance of counsel / Evidence / Weight / Sufficiency
- Evidence / Weight / Sufficiency
- Sentencing / Rule of lenity
- Social Security Act / Dictionary of Occupational Titles
- Breach of warranty
- Conspiracy to conceal this assault / Evidence / Procedural Reasonableness / Sentencing
- Federal Tort Claims Act / Statute of limitations
- Employee Retirement and Income Security Act
- Medicaid benefits
- Collective bargaining agreement / Like-kind contributions
- Lease Agreement / implied right of action
 

Ohio Supreme Court

 

Rzepka v. Solon (Slip Opinion)(March 31, 2009)(2009-Ohio-1353)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2009/2009-ohio-1353.pdf
-  Elections - Election contest used to challenge ward-majority provision of ordinance - Effect of alleged election irregularity not proven by clear and convincing evidence - Judgment affirmed.

State v. Rivas (Slip Opinion)(March 31, 2009)(2009-Ohio-1354)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2009/2009-ohio-1354.pdf
-  Criminal law - Discovery - Crim.R. 16(B)(1)(c) - Evidence on police computers - When a prosecutor has provided a written transcript that purports to accurately reflect data stored on a computer hard drive, a court may not order an examination of the computer hard drive unless the defense makes a prima facie showing that the state has provided false, incomplete, adulterated, or spoliated evidence - Judgment reversed.

Crawford-Cole v. Lucas Cty. Dept. of Job & Family Servs. (Slip Opinion)(March 31, 2009)(2009-Ohio-1355)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2009/2009-ohio-1355.pdf
-  Administrative procedure - R.C. Chapter 5104 - Child day-care - Time for appeal of agency decision revoking certification of type B family day-care home is set forth in Ohio Adm.Code 5101:2-14-40 - Type B family day-care homes receive certification from county agency, not state - Deadline in R.C. 119.07 does not apply, as R.C. Chapter 119 applies only to state agency decisions.

State ex rel. Gill v. School Emps. Retirement Sys. of Ohio (Slip Opinion)(March 31, 2009)(2009-Ohio-1358)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2009/2009-ohio-1358.pdf
-  Public employees - Disability-retirement benefits - R.C. 145.35(E) - Grant of disability-retirement benefit by Public Employees Retirement System is final - Member of two separate public-employee retirement systems who applies for and receives disability-retirement benefits solely from PERS may not later apply for combined disability-retirement benefits from PERS and second retirement system.

Doe v. Marlington Local School Dist. Bd. of Edn. (Slip Opinion)(March 31, 2009)(2009-Ohio-1360)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2009/2009-ohio-1360.pdf
-  Political subdivision immunity - R.C. 2744.02(B)(1) - The exception to political subdivision immunity in R.C. 2744.02(B)(1) for “negligent operation of any motor vehicle” does not encompass supervision of the conduct of the passengers of the vehicle.

Disciplinary Counsel v. Shaver (Slip Opinion)(April 1, 2009)(2009-Ohio-1385)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2009/2009-ohio-1385.pdf
-  Attorneys at law - Misconduct - Revealing information related to representation of a client - Public reprimand.

Trumbull Cty. Bar Assn. v. Kafantaris (Slip Opinion)(April 1, 2009)(2009-Ohio-1389)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2009/2009-ohio-1389.pdf
-  Attorney misconduct, including conduct involving dishonesty, fraud, deceit, or misrepresentation, conduct prejudicial to the administration of justice, failing to maintain complete records of all funds of a client in lawyer’s possession, failing to promptly pay a client all the funds in the lawyer’s possession to which the client is entitled - Permanent disbarment.

Booth v. Duffy Homes, Inc. (Slip Opinion)(April 1, 2009)(2009-Ohio-1392)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2009/2009-ohio-1392.pdf
-  Discretionary appeal accepted on Proposition of Law No. I and cause remanded for consideration of Martin v. Design Constr. Servs., Inc.

Disciplinary Counsel v. Wolanin (Slip Opinion)(April 1, 2009)(2009-Ohio-1393)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2009/2009-ohio-1393.pdf
-  Attorney misconduct, including misappropriating client funds and failing to cooperate in the investigation of misconduct - Indefinite suspension.
 

First District Court of Appeals

[Search Other Ohio Districts]
 
State of Ohio vs. Shawn Gould (April 1, 2009)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-080629_04012009.pdf
-  Gould appeals the judgment of the Hamilton County Court of Common Pleas imposing prison sentences for vandalism, a felony of the fourth degree, and breaking and entering, a felony of the fifth degree. He contends that the trial court ignored mitigating factors when it imposed the maximum sentences for the offenses. Judgment AFFIRMED.

State of Ohio vs. Robert Foster (April 1, 2009)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-080567_04012009.pdf
-  Foster appeals the judgment of the Hamilton County Court of Common Pleas convicting him of theft. Foster’s appointed appellate counsel, pursuant to Anders v. California, states in her brief that she has found no errors in the proceedings below and requests this court to review the record for any reversible error. Judgment AFFIRMED.

State of Ohio vs. Bretton Weakley (April 1, 2009)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-080539_04012009.pdf
-  Defendant-appellant Bretton Weakley was charged with two counts of aggravated trafficking in drugs, one count of trafficking in drugs, and one count of carrying a concealed weapon. He pleaded guilty and was sentenced to three and one-half years’ incarceration. Counsel requests permission to withdraw and, as required by Anders, requests that this court independently examine the record to determine if the proceedings below were free of prejudicial error. Judgment AFFIRMED.

State of Ohio vs. Landon Slawson (April 1, 2009)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-080530_04012009.pdf
-  Slawson was convicted of possession of marijuana and possession of an open flask of alcohol. Slawson argues that the state did not prove that he had knowingly possessed the marijuana and he was denied effective assistance of counsel. Judgment AFFIRMED.

State of Ohio vs. Antwaun Howard (April 1, 2009)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-080528_04012009.pdf
-  Antwaun Howard appeals the trial court’s judgment convicting him of trafficking in marijuana following a jury trial. Judgment AFFIRMED.

State of Ohio vs. Latina R. Stallworth (April 1, 2009)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-080233_04012009.pdf
-  Following the entry of a guilty plea, defendant appellant, Latina Stallworth, was convicted of endangering children in violation of R.C. 2919.22(A). Stallworth*s live-in boyfriend, Fred Johnson, was convicted of beating her seven-year-old son to death. Stallworth was sentenced to the maximum five-year prison term. Stallworth appeals her sentence. Judgment AFFIRMED.
 

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

 

George Lindsley v. Commissioner of Social Security  (March 31, 2009) (Appeal from S.D. OH)
-  http://www.ca6.uscourts.gov/opinions.pdf/09a0125p-06.pdf
-  George Lindsley sought disabilityinsurance benefits under Title II of the Social Security Act (SSA), claiming that he is unable to work due to a fused right wrist, depression, and bursitis. After an Administrative Law Judge (ALJ) and the Social Security Appeals Council denied his claim for benefits, he filed suit in federal district court, arguing that the ALJ’s decision was not supported by substantial evidence because the testimony of the vocational expert conflicted with information found in the Dictionary of Occupational Titles (the DOT). The district court upheld the ALJ’s determination. For the reasons set forth below, we AFFIRM the judgment of the district court.
       

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

 

Dillon v. Cobra Power Corp (March 30, 2009) (Appeal from E.D. KY)
-  http://www.ca6.uscourts.gov/opinions.pdf/09a0121p-06.pdf
-  This diversity case arises from the sale of a high-performance speed boat by Defendant Lake Cumberland Marine (“Cumberland”) to Plaintiff Tina Dillon. Dillon claims the boat was defective. Defendant Cobra Power (“Cobra”) manufactured the engines and transmissions, and Cumberland installed them in the boat in May 2000. The subsequent repair history of the boat is long and tortuous (not unlike the seven-year history of this lawsuit). After several unsuccessful attemptsto repair the boat engines and outdrives, Dillon, in January 2001, sued Cumberland for breach of contract and warranty, as well as a violation of the Kentucky Consumer Protection Act (KCPA); she also sued Cobra for breach of warranty. Cobra and Dillon each appeal from the adverse decisions against them, including pretrial and post-trial orders on amendment of pleadings. Cumberland defends the district court’s decision to dismiss all claims against it. For the reasons discussed below, we affirm in part and reverse in part, and, given the already lengthy history of this lawsuit, reluctantly, but properly, remand the matter for further proceedings.

USA v. Carson AND
USA v. Hey  AND
USA v. Jacquemain (March 30, 2009) (Appeal from E.D. KY)
-  http://www.ca6.uscourts.gov/opinions.pdf/09a0122p-06.pdf
-  This case arises out of the assault of Robert Paxton by Mount Clemens Police Department officers and the officers’ subsequent conspiracy to conceal this assault. Following a joint trial of five defendants, the jury convicted Patrick Carson of deprivation of rights under color of law, conspiracy to obstruct justice, and obstruction of justice. The jury found Robert Hey guilty of obstruction of justice and perjury. Peter Jacquemain was found guilty of obstruction of justice, and Robert Jacquemain was found guilty of conspiracy to obstruct justice. A fifth officer, Daniel Gerkey, was acquitted of all charges. Carson, Hey, and the Jacquemains appeal their convictions on various grounds, and Carson appeals his sentence. Additionally, the government appeals the sentence of Robert Jacquemain. For the reasons set forth below, we affirm the convictions of Carson, Hey, and the Jacquemains. Additionally, we affirm Carson’s sentence. We also conclude that any errors in calculating Robert Jacquemain’s sentence were harmless and that his sentence was not substantively unreasonable. We therefore affirm Robert Jacquemain’s sentence.

Hertz v. USA (March 31, 2009) (Appeal from E.D. MI)
-  http://www.ca6.uscourts.gov/opinions.pdf/09a0123p-06.pdf
-  Plaintiff Susan Hertz appeals the district court’s dismissal, on limitations grounds, of her claim under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2671 et seq. We affirm.

Jerry Crawford v. TRW Automotive U.S. (March 31, 2009) (Appeal from E.D. MI)
-  http://www.ca6.uscourts.gov/opinions.pdf/09a0124p-06.pdf
-  Plaintiffs, a class of former TRW Automotive employees, allege that TRW violated the Employee Retirement and Income Security Act by closing the plant where they worked to interfere with the vesting of their retirement benefits. The district court disagreed, and granted the company’s motion for summary judgment. We affirm.

Lakersko Brown v. Tennessee Department of Financ (April 1, 2009) (Appeal from M.D. TN)
-  http://www.ca6.uscourts.gov/opinions.pdf/09a0126p-06.pdf
-  The Tennessee Department of Finance appeals the district court’s denial of its motion to vacate a settlement between the parties in a suit for Medicaid benefits. Tennessee argues that the agreed order approving the settlement should be treated as a consent decree and vacated under Federal Rule of Civil Procedure 60(b)(5) because an intervening decision of this Court, Westside Mothers v. Olszewski, 454 F.3d 532 (6th Cir. 2006) (“Westside Mothers II”), eliminated the legal basis for the settlement and thus made it inequitable to enforce prospectively. We REVERSE in part and REMAND for further proceedings consistent with this opinion.

Joint Administrative Committee v. Washington Group International (April 1, 2009) (Appeal from E.D. MI)
-  http://www.ca6.uscourts.gov/opinions.pdf/09a0127p-06.pdf
-  When an employer signs a collective bargaining agreement, it assumes certain obligations to its employees. At issue in this case are the scope of obligations that a general contractor assumes in signing a national collective bargaining agreement that incorporates-in part-two local collective bargaining agreements designed to provide fringe benefits to independent contractors working on the general contractor’s projects.

Bowling Green and Warren Count v. Martin Land Development Company (April 1, 2009) (Appeal from W.D. KY)
-  http://www.ca6.uscourts.gov/opinions.pdf/09a0128p-06.pdf
-  Plaintiffs, the Bowling Green and Warren County Airport Board (“Airport Board”) and Geoff Fields (“Fields”), appeal from the district court’s decision granting summary judgment in favor of Defendants, Martin Land Development Company, Inc. (“Martin”) and Co-Mar Aviation, Inc. (“Co-Mar”). The district court granted summary judgment in favor of Defendants on the ground that 49 U.S.C. § 40103 does not imply a private right of action. Although other circuits have addressed the issue, this is a matter of first impression for this Court. For the reasons set forth herein, we AFFIRM the judgment of the district court.
 

Daily Case Updates