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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May 6th - 12th, 2009

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

TOPICS:
- Attorney misconduct
- Contracts / Arbitration / Nursing home
- Statute of frauds / Promissory estoppel
- Notice of appeal / Identify legal or factual errors
- Award / Back pay for classification change / Interest
- Sentencing / Statutory range
- Hearsay / Excited utterance / Delinquency Adjudication
- Workers Compensation amendment / Disc Herniations
- Entity capability of being sued / Proper notice / Motion of leave / Threat to safety
- Sentencing / Post release control language
- Civil Rights Act / Religious discrimination / Union fees
- Interlocutory appeal / Evidence / Hearsay
- Bankruptcy / Dischargeable debt
- Writ of habeas corpus / Brady Claim / Prosecutorial Misconduct
- Certificate of appealability
 

Ohio Supreme Court

 

Disciplinary Counsel v. Wineman (Slip Opinion)(May 6, 2009)(2009-Ohio-2005)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2009/2009-ohio-2005.pdf
-  Attorney misconduct, including engaging in conduct prejudicial to the administration of justice — Two-year suspension, stayed on conditions.

Cleveland Bar Assn. v. Slavin (Slip Opinion)(May 6, 2009)(2009-Ohio-2015)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2009/2009-ohio-2015.pdf
-  Attorney misconduct, including neglecting an entrusted legal matter and engaging in conduct involving dishonesty — One-year suspension with six months stayed.

Disciplinary Counsel v. Large (Slip Opinion)(May 6, 2009)(2009-Ohio-2022)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2009/2009-ohio-2022.pdf
-  Attorneys at law — Misconduct — Failure to pay income taxes and report employee wages — One-year suspension.

Hayes v. Oakridge Home (Slip Opinion)(May 7, 2009)(2009-Ohio-2054)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2009/2009-ohio-2054.pdf
-  Contracts — Arbitration — Nursing home — Arbitration agreement, voluntarily executed by nursing-home resident upon her admission and not as a precondition to admission, is not rendered procedurally unconscionable solely due to resident’s age — Arbitration agreement that waives right to trial and right to recover punitive damages and attorney fees is not substantively unconscionable.

Olympic Holding Co., L.L.C. v. ACE Ltd. (Slip Opinion)(May 7, 2009)(2009-Ohio-2057)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2009/2009-ohio-2057.pdf
-  Statute of frauds — Promissory estoppel — Damages — The breach of a promise to sign an agreement does not remove the agreement from the signing requirement of the statute of frauds — A party may not use promissory estoppel to bar the opposing party from asserting the affirmative defense of the statute of frauds, which requires that an enforceable contract be in writing and signed by the party to be charged — Damages for promissory estoppel are an adequate remedy for the breach of an oral promise, absent a signed agreement — A joint-venture agreement that does not comply with the statute of frauds is unenforceable, and an unenforceable joint-venture agreement cannot impose any fiduciary duties on the parties.

Medcorp, Inc. v. Ohio Dept. of Job & Family Servs. (Slip Opinion)(May 7, 2009)(2009-Ohio-2058)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2009/2009-ohio-2058.pdf
-  To satisfy the “grounds of the party’s appeal” requirement in R.C. 119.12, parties appealing under that statute must identify specific legal or factual errors in their notices of appeal.
 

First District Court of Appeals

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*** Judgment Entries ***

Regina Hood vs. City of Cincinnati, et al. (May 6, 2009)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-080732_05062009.pdf
-  Regina Hood appeals from the trial court’s order denying her motion for interest on an award of back pay that she had received from the city of Cincinnati.

Jud Carmelia Duley (May 6, 2009)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-080456_05062009.pdf
-  Defendant-appellant Carmella Duley appeals her aggregate sentence of 23 years’ incarceration for two counts of aggravated vehicular assault, failing to comply with an order of a police officer, possession of heroin, and failing to stop after an accident. Duley argues only that her 23-year sentence was disproportionate to comparable cases involving the same or similar offenses. Judgment AFFIRMED.

In Re: Jacorey Thomas (May 6, 2009)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-080449_05062009.pdf
-  Appellant Jacorey Thomas appeals his delinquency adjudication in the Hamilton County Common Juvenile Court for the offense of rape. Thomas challenges the trial court’s admission of hearsay testimony from D.C.’s mother, Star Castleman, and Andrea Richey, a social worker at Cincinnati Children’s Hospital. Thomas challenges the sufficiency of the evidence adduced in support of his delinquency adjudication. Judgment AFFIRMED.

Dale L. Glass vs. C. James Conrad, Administrator, Ohio Bureau of Workers' Compensation, et al. (May 6, 2009)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-080448_05062009.pdf
-  On October 4, 1983, plaintiff-appellant Dale L. Glass was injured in an accident while employed by American Store Fixtures, Inc. Glass applied for benefits with the Ohio Bureau of Workers’ Compensation, and his claim for an acute lumbar strain and for a cervical sprain was allowed. In 1990, Glass filed a motion requesting that his claim be amended to include additional conditions, including a lumbar disc herniation at L5-S1 and a cervical disc herniation at C6-C7. The Industrial Commission denied his claim for an additional allowance. Glass now argues that the trial court erred by finding that he was not entitled to participate in the fund because of the herniated discs. Judgment AFFIRMED.

David Render vs. Forest Park Police Department (May 6, 2009)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-080371_05062009.pdf
-  Plaintiffs-appellants David and Elizabeth Render appeal the trial court’s entry of summary judgment in favor of defendants-appellees Forest Park Police Department and Forest Park police officer Corey Hall. Render was convicted of resisting arrest with accompanying specifications, having a weapon while under a disability with accompanying specifications, and carrying a concealed weapon. Render contends (1) that the trial court erred by entering summary judgment in favor of the FPPD and Hall because there were genuine issues of material fact as to whether the Forest Park Police Department was an entity capable of being sued, (2) that summary judgment was improperly granted in Hall’s favor because the trial court failed to provide proper notice of the hearing on Hall’s motion, (3) that the trial court erred by denying his “motion for leave to file discovery out of time.”, and (4) that the trial court erred by entering summary judgment in favor of Hall when genuine issues of material fact existed as to whether Render had posed an immediate threat to the safety of Hall while he was fleeing. Judgment AFFIRMED.

*** Opinions ***

State of Ohio vs. James Gause (May 8, 2009)(2009-Ohio-2140)
-  http://www.sconet.state.oh.us/rod/docs/pdf/1/2009/2009-ohio-2140.pdf
-  The trial court erred in resentencing the defendant when the only defect in the original judgment of conviction was the absence of post-release-control language: when the trial court has orally informed the defendant of post-release control, but the post-release-control language is not recorded in the judgment entry, the proper remedy is to add the omitted post-release-control language by using an entry nunc pro tunc after a hearing. Judgment REVERSED and Cause REMANDED.
 

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

 

No opinions.
       

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

 

USA v. Francisco Rodriguez  (May 6, 2009) (Appeal from W.D. KY)

-  http://www.ca6.uscourts.gov/opinions.pdf/09a0165p-06.pdf
-  The United States brings this interlocutory appeal to challenge the district court’s order excluding evidence of calls made to the defendant’s cellular telephone shortly after his arrest. The district court determined that the calls were hearsay under Federal Rule of Evidence 801(c) and that they did not fit within any exception to Rule 802’s general preclusion of hearsay. We hold that because the government did not seek to prove the truth of any matter asserted by the callers, the district court erred in excluding evidence of the calls.

Jeffrey Reed v. International Union (May 7, 2009) (Appeal from E.D. MI)
-  http://www.ca6.uscourts.gov/opinions.pdf/09a0166p-06.pdf
-  Plaintiff-Appellant Jeffrey Reed appeals the district court’s order granting summary judgment in favor of Defendant-Appellee International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (“UAW”). Reed claims that UAW, in violation of Title VII of the Civil Rights Act of 1964, failed to provide a reasonable accommodation for his religious objection to financially supporting the union. Because Reed has failed to make out a prima facie case of religious discrimination, we AFFIRM.

Sameer Patel v. Shamrock Floorcovering Service (May 12, 2009) (Appeal from E.D. MI)
-  http://www.ca6.uscourts.gov/opinions.pdf/09a0166p-06.pdf
-  Bankruptcy is designed to give debtors a “fresh start.” Ordinarily, whatever assets a debtor has are allocated among his creditors and, even though they rarely cover all liabilities, he emerges with no outstanding debts. But there are exceptions: some debts are not dischargeable, and among these are debts arising from a “defalcation while acting in a fiduciary capacity.” 11 U.S.C. § 523(a)(4). This appeal presents the question whether the defendant, Sameer Patel—corporate officer, 50% shareholder, and day-to-day administrator of a “contractor” under the Michigan Builders Trust Fund Act, MICH. COMP. LAWS § 570.151—is a fiduciary such that § 523(a)(4) prevents him from discharging his debt because he breached his fiduciary duty to plaintiff Shamrock Floorcovering. Because Patel was a fiduciary and breached his duties by “defalcation,” we affirm the district court’s ruling that his debt to Shamrock is not dischargeable.

Irick v. Bell (May 12, 2009) (Appeal from E.D. TN)
-  http://www.ca6.uscourts.gov/opinions.pdf/09a0168p-06.pdf
-  Billy Ray Irick is on Tennessee’s death row for the rape and murder of seven-year-old Paula Dyer. Irick appeals the district court’s dismissal of his petition for a writ of habeas corpus under 28 U.S.C. § 2254. He argues that prosecutors failed to provide defense counsel with a statement of the victim’s mother, in violation of Brady v. Maryland, 373 U.S. 83 (1963), and that the prosecutor committed misconduct during closing argument in the trial’s penalty phase. Finding merit in neither argument, we AFFIRM.

Derrick Bell v. Kurt Jones (May 12, 2009) (Appeal from E.D. MI)
-  http://www.ca6.uscourts.gov/opinions.pdf/09a0169p-06.pdf
-  Derrick Bell petitions for rehearing en banc of this court’s order entered January 6, 2009, by a single judge of this court denying his application for a certificate of appealability. Petition denied.
 

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