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.

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April 2nd & 3rd, 2009

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

TOPICS:
- Attorney Misconduct
- Unauthorized practice of law
- Taxation / Sales tax
- Workers’ compensation
- Abuse of discretion / Procedure / Rules
- Appellate Review / Civil / Products Liability
- Antitrust / Credit Information
- Writ of Habeas corpus relief / Jury Selection
- Collective bargaining agreement / Lack of jurisdiction / ERISA
- Employment / Family Medical Leave Act / Sex discrimination
- Sentencing
- Hobbs Act / Bribe public official / Sentencing
- Asbestos / Bystander liability
 

Ohio Supreme Court

 

Disciplinary Counsel v. Dettinger (Slip Opinion)(April 2, 2009)(2009-Ohio-1429)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2009/2009-ohio-1429.pdf
-  Attorneys at law - Misconduct - Accepting loan from client without full disclosure - Six-month suspension, stayed.

Lorain Cty. Bar Assn. v. Kocak (Slip Opinion)(April 2, 2009)(2009-Ohio-1430)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2009/2009-ohio-1430.pdf
-  Unauthorized practice of law - Preparing and filing legal papers on another’s behalf - Injunction issued and civil penalty imposed.

Home Depot USA, Inc. v. Levin (Slip Opinion)(April 2, 2009)(2009-Ohio-1431)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2009/2009-ohio-1431.pdf
-  Taxation - Sales tax - R.C. 5739.121 - “Bad debt” deduction - Refund not available to vendor when vendor makes sale on credit and consumer defaults, but vendor does not charge off debt as uncollectible on vendor’s own books - In credit card purchase, consumer buys from vendor but finance company carries debt on its books - Finance company, not vendor, bears risk of default and writes off bad debt.

Disciplinary Counsel v. Johnston (Slip Opinion)(April 2, 2009)(2009-Ohio-1432)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2009/2009-ohio-1432.pdf
-  Attorneys - Misconduct - Conduct adversely reflecting on fitness to practice law - Failure to maintain client funds in separate account - One-year suspension stayed on conditions.

State ex rel. Tracy v. Indus. Comm. (Slip Opinion)(April 2, 2009)(2009-Ohio-1386)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2009/2009-ohio-1386.pdf
-  Workers’ compensation - Abuse of discretion by the Industrial Commission - Court of appeals judgment reversing commission’s denial of benefits is affirmed.
 

First District Court of Appeals

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Craig Cowit, et al. vs. Cellco Partnership d/b/a Verizon Wireless (April 3, 2009)(2009-Ohio-1596)
-  http://www.sconet.state.oh.us/rod/docs/pdf/1/2009/2009-ohio-1596.pdf
-  Plaintiffs successfully demonstrated that certification of one class was appropriate and that common issues of fact predominated over individual issues under Civ.R. 23(B)(3), when all plaintiffs had experienced a similar injury that was provable in a similar manner (all plaintiffs were charged a similar monthly fee for the same contractual service that allegedly was not provided). Given a trial court’s inherent power to manage its own docket, the court did not abuse its discretion in granting nationwide class certification on a breach-of-contract claim after it had reviewed all the relevant law and had determined that it could effectively manage the variances in contract law among the states. The trial court appropriately declined to grant certification to a proposed class that included numerous plaintiffs who had suffered an injury without experiencing an economic loss, and whose alleged damages otherwise would have varied according to individualized circumstances. Judgment AFFIRMED.

Christina M. Bouher, et al. vs. Aramark American Food Services, Inc., et al. (April 3, 2009)(2009-Ohio-1597)
-  http://www.sconet.state.oh.us/rod/docs/pdf/1/2009/2009-ohio-1597.pdf
-  The trial court did not err in granting summary judgment in favor of a manufacturer of a coffee maker when the plaintiffs presented no evidence to show that material issues of fact existed as to whether the product was defectively designed: the evidence showed that the coffee maker did exactly what any consumer would expect it to do-produce water from its hot-water spigot hot enough to brew tea. (Nadel v. Burger King Corp. (1997), 119 Ohio App.3d 578, 695 N.E.2d 1185, overruled.) The trial court did not err in granting summary judgment in favor of a manufacturer of a coffee maker on the plaintiffs’ failure-to-warn claim, because burns from water hot enough to brew tea are an open and obvious risk. (Nadel v. Burger King Corp. (1997), 119 Ohio App.3d 578, 695 N.E.2d 1185, overruled.) An appellate court may overrule a prior decision where (1) the decision was wrongly decided at the time, or changes in circumstances no longer justify continued adherence to the decision; (2) the decision defies practical workability; and (3) abandoning the precedent would not create an undue hardship for those who have relied upon it. Judgment AFFIRMED.
 

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

 

CBC Companies, Inc. v. Equifax, Inc. (April 2, 2009) (Appeal from S.D. OH)
-  http://www.ca6.uscourts.gov/opinions.pdf/09a0129p-06.pdf
-  The Federal National Mortgage Association (“Fannie Mae”) and the Federal Home Loan Mortgage Corporation (“Freddie Mac”) regulate the residentialmortgage- loan industry by requiring mortgage brokers and lenders to consider a consumer’s credit information before approving loans. Specifically, federal regulations require brokers and lenders to purchase data from each of the three nationwide consumer reporting agencies (“NCRAs”)-Experian, Ltd., TransUnion LLC, and Equifax, Inc. Plaintiffs CBC Companies, Inc. and CBC Innovis, Inc. (collectively, “CBC”) are resellers-companies that purchase consumer credit information from all three NCRAs and consolidate the data into a “tri-merged report.” As a cheaper alternative, some resellers also sell copies of tri-merged reports, or “reissues.” CBC filed this antitrust lawsuit against Equifax, Inc. and its reseller subsidiary, Equifax Information Services LLC (collectively, “Equifax”), after Equifax implemented a contractual fee that CBC alleges will restrict the ability of resellers to offer reissues. Equifax moved to dismiss the case, and CBC now appeals the district court’s grant of that motion. Because CBC failed to allege an antitrust injury and thus lacks standing, we affirm.

Braxton v. Gansheimer (April 2, 2009) (Appeal from N.D. OH)
-  http://www.ca6.uscourts.gov/opinions.pdf/09a0132p-06.pdf
-  Respondent Richard Gansheimer, Warden, appeals the order of the district court granting petitioner Anthony Braxton, an Ohio state prisoner, a conditional writ of habeas corpus pursuant to 28 U.S.C. § 2254, on the basis of Braxton’s claim that the prosecution’s exercise of a peremptory challenge during jury selection at his state court trial was racially discriminatory in violation of the Equal Protection Clause and Batson v. Kentucky, 476 U.S. 79 (1986). In granting the writ, the district court held that the Ohio courts’ decisions denying Braxton’s Batson challenge was an unreasonable application of clearly established federal law and was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding, entitling Braxton to relief under 28 U.S.C. § 2254(d)(1) and (2). For the reasons stated below, we reverse the judgment of the district court and remand the case with instructions to dismiss Braxton’s habeas petition.

Hobert Tackett v. M&G Polymers USA, LLC (April 3, 2009) (Appeal from S.D. OH)
-  http://www.ca6.uscourts.gov/opinions.pdf/09a0135p-06.pdf
-  The Plaintiffs United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO-CLC (“USW”) and Hobert Tackett, Woodrow W. Piles, and Harland B. Conley (“Retiree Plaintiffs”) separately appeal the district court’s dismissal of their case under Federal Rule of Civil Procedure 12(b)(1) and (b)(6). In resolving this appeal, we must decide two main issues: (1) whether, under § 301 of the Labor Management Relations Act (“LMRA”), 29 U.S.C. § 185(a), a district court must find that a violation of a collective bargaining agreement has occurred before it can exercise jurisdiction; and (2) whether, under this Circuit’s Yard-Man analysis, UAW v. Yard-Man, 716 F.3d 1476, 1479 (6th Cir. 1983), the Plaintiffs have sufficiently established a right to vested health-care benefits to survive a motion to dismiss under Rule 12(b)(6) by relying on CBA language promising a “full Company contribution” to these benefits. Because we hold that (1) a violation is not a prerequisite to jurisdiction under § 301 and because (2) the Plaintiffs have sufficiently shown an intention to vest healthcare benefits to survive a motion to dismiss, we REVERSE and REMAND.
 

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

 

LaFawn Carter v. Ford Motor Company (April 2, 2009) (Appeal from E.D. MI)
-  http://www.ca6.uscourts.gov/opinions.pdf/09a0130p-06.pdf
-  Defendant Ford Motor Company fired LaFawn Carter in March 2005 when she did not report to work and, in Ford’s view, had not properly extended her medical leave. Carter filed a grievance and Ford agreed to reinstate her, but only as a probationary employee. In January 2006, Ford fired Carter after she was involved in a physical altercation with Ford’s labor relations supervisor. Carter then sued Ford, alleging sex discrimination and violations of the Family Medical Leave Act. The district court granted summary judgment in Ford’s favor on all counts. Carter’s appeal focuses only on her March 2005 termination, and contends that the district court erroneously concluded that her complaint did not encompass the 2005 termination. We disagree and AFFIRM the district court’s judgment.

USA v. James Gapinski (April 2, 2009) (Appeal from W.D. MI)
-  http://www.ca6.uscourts.gov/opinions.pdf/09a0131p-06.pdf
-  Defendant-Appellant James Edward Gapinski (“Gapinski”) pleaded guilty to one count of conspiracy to manufacture more than 100 marijuana plants, in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(B)(vii). He now appeals the 120-month sentence imposed by the district court upon resentencing after we vacated his original 156-month sentence and remanded for resentencing in light of United States v. Booker, 543 U.S. 220 (2005). Gapinski argues that the district court’s sentencing determination is procedurally unreasonable because the district court failed to consider and respond to his arguments for a lower sentence. Because the record does not show that the district court considered and explained its reasons for rejecting Gapinski’s nonfrivolous argument for a lower sentence based upon substantial assistance to the government, we VACATE Gapinski’s sentence and REMAND to the district court for resentencing.

USA v. Charles Abbey (April 3, 2009) (Appeal from E.D. MI)
-  http://www.ca6.uscourts.gov/opinions.pdf/09a0133p-06.pdf
-  Former Burton, Michigan, City Administrator Charles Abbey was convicted of conspiracy to bribe a public official under 18 U.S.C. § 371 and 18 U.S.C. § 666(a)(2), solicitation of a bribe by a public official under 18 U.S.C. § 666(a)(1), and extortion by a public official under the Hobbs Act, 18 U.S.C. § 1951. Though covering three crimes and two statutes, Abbey’s appeal boils down to a single assertion: that the government, to sustain a conviction under 18 U.S.C. § 666 or the Hobbs Act, 18 U.S.C. § 1951, must prove a direct link between a specific gift given to a public official and an explicit promise by that official to perform a specific, identifiable official act in return. Though Abbey is correct that the government did not prove such a link at trial and that the jury instructions did not so instruct, we nevertheless reject his argument because neither statute contains such a heightened requirement. We thus affirm Abbey’s convictions and sentence.

David Martin v. Cincinnati Gas and Electric Co (April 3, 2009) (Appeal from E.D. KY)
-  http://www.ca6.uscourts.gov/opinions.pdf/09a0134p-06.pdf
-  Dennis Martin (“Mr. Martin”) died from malignant mesothelioma on March 22, 2002. His son, David Martin (“Plaintiff”), serving as executor of his father’s estate, filed a complaint based on asbestos exposure in Kentucky state court against nine defendants. Defendants removed the case to the Eastern District of Kentucky based on diversity. After various defendants settled or were dismissed from the suit, claims remained against Cincinnati Gas & Electric Company (“CG&E”), General Electric (“GE”), and General Motors (“GM”). The claims against CG&E and GE were based on asbestos that Mr. Martin’s father, Vernon Martin, brought home on his work clothes while working for CG&E. The claim against GM was based on Mr. Martin’s alleged exposure to asbestos while working as a ship mechanic from 1979 to 1984. The district court found that Plaintiff did not raise an issue of material fact regarding causation in his claim against GM, and so granted summary judgment to GM. The district court also granted summary judgment for CG&E and GE because the injury to Mr. Martin was not foreseeable at the time of exposure. Plaintiff appeals both orders. For the reasons given below, we affirm the district court’s orders.
 

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