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 6th, 7th, & 8th, 2009

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

TOPICS:
- Attorney misconduct
- Juvenile procedure / R.C. 2152.02
- writ of procedendo
- Limitation of actions
- Unclaimed funds
- Family Law / Juvenile / Permanent custody / Hearsay
- Abuse of discretion / Motion to withdraw guilty plea
- Post-release-control / Sentencing
- Frivolous Appeal
- Breach-of-contract / Forum non conveniens (Jurisdiction)
- Criminal damaging / reason of insanity
- Terry stop / Allied offenses of similar import
- Crim.R. 29 motion / Evidence / manifest Weight
- Workers' compensation benefits / Breach-of-contract / Unjust enrichment
- Evidence / Sufficient / Manifest weight
- Fair Debt Collection Protection Act
- Immigration and Nationality Act / Immediate relative - surviving alien-spouse
- Emergency Medical Treatment and Active Labor Act
- Bankruptcy / Chapter 11 /  Secured creditor
- Sentencing Guidelines / New Crack Cocaine guidelines
- Immigration / Asylum / In absentia order
 

Ohio Supreme Court

 

State ex rel. Vazquez v. Cuyahoga Cty. Court of Common Pleas (Slip Opinion)(April 7, 2009)(2009-Ohio-1498)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2009/2009-ohio-1498.pdf
-  Judgment of the court of appeals reversed and writ of prohibition granted.

Morrin v. DaimlerChrysler Corp. (Slip Opinion)(April 7, 2009)(2009-Ohio-1499)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2009/2009-ohio-1499.pdf
-  Judgment of the court of appeals affirmed.

In re E.L. (Slip Opinion)(April 7, 2009)(2009-Ohio-1514)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2009/2009-ohio-1514.pdf
-  Discretionary appeal accepted and cause remanded to the court of appeals for consideration of In re L.A.B.

In re C.J.B. (Slip Opinion)(April 7, 2009)(2009-Ohio-1515)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2009/2009-ohio-1515.pdf
-  Discretionary appeal accepted and judgment of the court of appeals reversed in part on the authority of In re L.A.B. and cause remanded.

Thorton v. Montville Plastics & Rubber, Inc. (Slip Opinion)(April 7, 2009)(2009-Ohio-1516)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2009/2009-ohio-1516.pdf
-  Judgment of the court of appeals affirmed.

Disciplinary Counsel v. McCord (Slip Opinion)(April 7, 2009)(2009-Ohio-1517)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2009/2009-ohio-1517.pdf
-  Attorney misconduct, including engaging in conduct involving fraud, deceit, dishonesty, or misrepresentation, engaging in conduct prejudicial to the administration of justice, using a misleading law firm name, and improperly sharing legal fees - Indefinite suspension.

In re P.F. (Slip Opinion)(April 7, 2009)(2009-Ohio-1518)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2009/2009-ohio-1518.pdf
-  Judgment of the court of appeals reversed on the authority of In re L.A.B. and cause remanded to the trial court for further proceedings consistent with In re L.A.B.

State ex rel. Sawicki v. Court of Common Pleas of Lucas Cty. (Slip Opinion)(April 8, 2009)(2009-Ohio-1523)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2009/2009-ohio-1523.pdf
-  Procedendo - Appeal from judgment granting writ of procedendo to compel a common pleas court and judge to vacate a stay and proceed in underlying action - Court of appeals’ grant of writ reversed - Intervention - Nonparties who were denied intervention lacked standing to appeal merits of grant of procedendo.

Estate of Stevic v. Bio-Medical Application of Ohio, Inc. (Slip Opinion)(April 8, 2009)(2009-Ohio-1525)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2009/2009-ohio-1525.pdf
-  LLimitation of actions - R.C. 2305.113(A) - Definition of “medical claim.”

Sogg v. Zurz (Slip Opinion)(April 8, 2009)(2009-Ohio-1526)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2009/2009-ohio-1526.pdf
-  Unclaimed funds - R.C. 169.08(D) - Denial of interest unconstitutional.
 

First District Court of Appeals

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*** Judgment Entries ***

In Re: Brown/Stadtmiller Children (April 8, 2009)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-090048_04082009.pdf
-  Brown appeals the judgment of the Hamilton County Juvenile Court granting permanent custody of her minor children to the Hamilton County Department of Job and Family Services. Judgment AFFIRMED.

State of Ohio vs. Dominique Tapplar (April 8, 2009)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-080731_04082009.pdf
-  Tapplar was convicted of trafficking in cocaine and cocaine possession. This court affirmed the conviction in part, but remanded the case to the trial court because the conviction involved allied offenses of similar import. On remand, the trial court convicted Tapplar of only cocaine possession and sentenced him accordingly. Counsel has asked this court to conduct an independent review of the record to determine whether the proceedings below were free from prejudicial error. Judgment AFFIRMED.

State of Ohio vs. Gary Kinley, Sr. (April 8, 2009)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-080686_04082009.pdf
-  Gary Kinley Sr. was indicted on one count of felonious assault with two gun specifications. He pleaded guilty to one, reduced count of aggravated assault, and the gun specifications were withdrawn by the state. Prior to sentencing, he filed a motion to withdraw his plea. The trial court denied the motion and sentenced him to one year in prison. Kinley claims that the trial court improperly denied his motion to withdraw his plea. Judgment AFFIRMED.

State of Ohio vs. Norman Laroche (April 8, 2009)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-080673_04082009.pdf
-  Laroche appeals the judgment of the Hamilton County Court of Common Pleas convicting him of domestic violence, a felony of the fourth degree as charged. Laroche now argues that the trial court erred by failing to accurately inform him of possible post-release-control sanctions and imposing a prison term of 18 months. Judgment AFFIRMED.

In Re: Antwaun Chandler (April 8, 2009)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-080628_04082009.pdf
-  Chandler was convicted of endangering children. Counsel has asked this court to conduct an independent review of the record to determine whether the proceedings below were free from prejudicial error. Judgment AFFIRMED.

In Re: Shakeil Boyd (April 8, 2009)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-080562_04082009.pdf
-  Boyd was alleged to be a delinquent child for violating R.C. 2923.122(B), which states that “no person shall knowingly possess a deadly weapon or a dangerous ordnance in a school safety zone.” Boyd claims that his adjudication was improper. Judgment AFFIRMED.

Ibrahim Malluf, DBA, Malluf Consulting Services vs. ECOM Consulting, Inc., et al. (April 8, 2009)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-080540_04082009.pdf
-  Malluf had an agreement with Ecom to do information technology work on a contract basis. Ruud Lighting, a company in Wisconsin, hired Lyons Consulting to find IT contractors to work on a project. Lyons entered into an agreement with Ecom to hire Malluf as a contractor to work on the Ruud project. Malluf travelled to Racine, Wisconsin, to provide IT services to Ruud. Lyons fired Malluf after one week. Malluf filed a breach-of-contract suit against Ecom in Hamilton County. Ecom filed a third-party complaint against Lyons. The trial court subsequently dismissed the case, without prejudice, on forum-non-conveniens grounds. Malluf challenges the trial court’s dismissal. Judgment AFFIRMED.

State of Ohio vs. Steven Zigler (April 8, 2009)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-080510_04082009.pdf
-  Zigler was found guilty of criminal damaging. He now appeals, arguing that the state presented insufficient evidence to sustain his conviction, and that his conviction was against the manifest weight of the evidence. Judgment AFFIRMED.

State of Ohio vs. Lenny Taylor (April 8, 2009)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-080445_04082009.pdf
-  After his motion to suppress was denied, Taylor entered a no-contest plea to trafficking in cocaine and cocaine possession. He was convicted and sentenced to concurrent, three-year prison terms for the two offenses. Taylor claims that the Terry stop was improper and he should not have been convicted of both drug trafficking and drug possession because they involved allied offenses of similar import. Judgment AFFIRMED with respect to the findings of guilt, but the sentences is VACATED and the case is REMANDED to the trial court for the purpose of imposing a sentence for only one of the two offenses.

State of Ohio vs. Jalynn R. Longmire (April 8, 2009)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-080442_04082009.pdf
-  Longmire was convicted of assault in violation of R.C. 2903.13. She was sentenced to one year of community control with the condition that she would have no contact with the victim. Longmire contends that the trial court erred by denying her Crim.R. 29 motion for an acquittal and her conviction is against the manifest weight of the evidence. Judgment AFFIRMED.

Jewish Health Systems/Jewish Hospital of Cincinnati, Inc vs. Joyce Deupree (April 8, 2009)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-080290_04082009.pdf
-  Deupree appeals from the trial court’s entry granting summary judgment in favor of plaintiff-appellee Jewish Health Systems/Jewish Hospital of Cincinnati, Inc., denying Deupree’s motion for summary judgment, and awarding Jewish Hospital $21, 545.51. Judgment AFFIRMED.

State of Ohio vs. Reginald Payne (April 8, 2009)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-080266_04082009.pdf
-  Payne appeals from the trial court’s judgment convicting him on one count of possession of crack cocaine, in an amount greater than five grams but less than ten grams. Payne challenges the sufficiency of the evidence to support his conviction. Judgment AFFIRMED.
 

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

 

Peggy Miller v. Javitch, Block & Rathbone  (April 6, 2009) (Appeal from S.D. OH)
-  http://www.ca6.uscourts.gov/opinions.pdf/09a0136p-06.pdf
-  Peggy Miller filed a putative class action against law firm Javitch, Block & Rathbone and two of its agents (collectively, “JBR”) under the Fair Debt Collection Protection Act (“FDCPA”). 15 U.S.C. §§ 1692e et seq. Miller contends that JBR violated the FDCPA by using false, deceptive, and misleading language in a debt-collection complaint. The district court first granted judgment on the pleadings on the falsity claim, and then entered summary judgment in favor of JBR as to the remaining claims. Miller appeals, and because we agree with the district court that Miller failed in her burden to raise a genuine issue of fact regarding a statutory violation by JBR, we affirm.

Nelly Lockhart v. Janet Napolitano (April 8, 2009) (Appeal from N.D. OH)
-  http://www.ca6.uscourts.gov/opinions.pdf/09a0139p-06.pdf
-  The United States Citizen and Immigration Services (“USCIS”) denied Petitioner Nelly Supangan Lockhart’s (“Lockhart” or “Mrs. Lockhart”) application for an adjustment of status to that of permanent United States resident on the ground that she was statutorily ineligible for such adjustment because she was no longer an “immediate relative” under the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101 et seq., upon the death of her husband. Lockhart filed a lawsuit in the United States District Court for the Northern District of Ohio, seeking injunctive, declaratory, and mandamus relief to compel Respondent Janet Napolitano, Secretary of the Department of Homeland Security (“Secretary” of “DHS”), to find, as a matter of law, that she is an “immediate relative” under INA, § 204(b)(2)(A)(i), 8 U.S.C. § 1151(b)(2)(A)(i), and to reopen and readjudicate her application for adjustment of status. The sole issue before us is a question of law, which requires us to interpret language of the INA to resolve a matter of first impression in this Circuit. The question is whether an alien-spouse, whose citizen-spouse filed the necessary “immediate relative” petition form under 8 U.S.C. §§ 1187, 1255(c)(4), but died within two years of the qualifying marriage, qualifies as a spouse under the “immediate relative” provision of the INA. For the reasons set forth below, we conclude that a “surviving alien-spouse” is a “spouse” within the meaning of the “immediate relative” provision of the INA. Accordingly, we AFFIRM the district court’s grant of summary judgment for Lockhart.
 

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

 

Johnella Moses v. Providence Hospital, Inc. (April 6, 2009) (Appeal from E.D. MI)
-  http://www.ca6.uscourts.gov/opinions.pdf/09a0137p-06.pdf
-  Plaintiff Johnella Richmond Moses, as representative of the estate of Marie Moses-Irons (“Moses-Irons”), brings claims against Defendants Providence Hospital and Medical Centers, Inc. (the “hospital”) and Paul Lessem (“Dr. Lessem”) pursuant to the Emergency Medical Treatment and Active Labor Act (“EMTALA”), 42 U.S.C. § 1395dd, and common law negligence. Plaintiff alleges that Defendants violated EMTALA by releasing Moses-Irons’ husband from the hospital ten days before he murdered Moses-Irons. Plaintiff appeals the district court’s decision to grant Defendants’ motion for summary judgment and dismiss Plaintiff’s claims. For the following reasons, we REVERSE the district court and REMAND for further proceedings with respect to the hospital, but AFFIRM with respect to Dr. Lessem.

Lindsay v. Covenant Mgmt (April 7, 2009) (Appeal from E.D. MI)
-  http://www.ca6.uscourts.gov/opinions.pdf/09a0138p-06.pdf
-  Thomas A. Lindsay appeals the district court’s order affirming the bankruptcy court’s decision to allow Covenant Bankcorp, Inc. (“Covenant”)’s claim against him. Lindsay objects to Covenant’s claim on the grounds that (1) Covenant impermissibly charged interest on the discount fee Lindsay paid at the inception of the loan, and (2) Covenant failed to apply to principal reduction the extension fee Lindsay paid. For the reasons that follow, we affirm.

USA v. Bryan Vandewege (April 8, 2009) (Appeal from W.D. MI)
-  http://www.ca6.uscourts.gov/opinions.pdf/09a0140p-06.pdf
-  The defendant, who is addicted to cocaine, appeals his 162-month sentence for distribution of cocaine, a significant part of which is attributable to 12.3 grams of crack cocaine found underneath the passenger-side floorboard mat of his car. On appeal, he contests only the portion of his sentence attributed to the 12.3 grams and, in addition, requests resentencing because of the recent retroactive application of new crack cocaine guidelines, an argument with which the government basically agrees. Accordingly, the District Court’s attribution to defendant of the 12.3 grams of crack cocaine was not error, but the case is remanded to the District Court for resentencing under 18 U.S.C. § 3582(c)(2).

Aminata Ibra Ba v. Holder (April 8, 2009) (Appeal from Board of Immigration Appeals)
-  http://www.ca6.uscourts.gov/opinions.pdf/09a0141p-06.pdf
-  Petitioner Aminata Ibra Ba, a citizen of Mauritania, applied for asylum, withholding of removal, and protection under the Convention against Torture, alleging racial persecution. The merits of her claims are not before us, however, because the immigration judge issued a removal order in absentia after she failed to appear for her hearing. He subsequently denied her motion to reopen, a decision affirmed by the Board of Immigration Appeals (“the Board”). This appeal poses the following question: What is required to establish that an alien received her statutorily required written notice of removal proceedings when that notice was sent by regular mail? The Board’s Order of March 25, 2008 dismissing petitioner’s motion to reopen is reversed and the cause is remanded for further proceedings consistent with this opinion.
 

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