Workers' compensation - R.C. 4123.57 - Claimant alleged that his
permanent total disability award was a new or changed circumstance
warranting reconsideration of the previous denial of his application for
scheduled loss compensation - Court of appeals' decision upholding
commission's order denying reconsideration affirmed.
Postconviction relief - Definition of transcript - The written
transcript constitutes the "transcript" under App.R. 9 and R.C.
2953.21(A)(2) when both a videotape recording and written transcript of
proceedings are available - Judgment reversed and cause remanded.
Final, appealable order - R.C. 2505.02 - When a trial court denies a
children-services agency's motion to modify temporary custody to
permanent custody, terminates the placement of temporary custody with
the agency, and awards legal custody to a parent, the order is final and
appealable under R.C. 2505.02.
Unemployment compensation - Just cause - When employment is
expressly conditioned upon obtaining or maintaining a license, the
employee agrees to the condition, and the employee is afforded
reasonable opportunity to comply, failure to meet the condition is just
cause for termination.
Quo warranto - R.C. 321.38 - Removal of county treasurer - Section
38, Article II, Ohio Constitution - R.C. 321.38 violates Section 38,
Article II by authorizing county commissioners to remove county
treasurer from office without complaint and hearing - Writ granted.
Workers' compensation - Temporary total disability compensation -
Aggravation of preexisting allowed condition - Denial of request for
reinstatement of compensation after voluntary retirement not an abuse of
discretion - Claimant did not demonstrate through medical evidence at
time of retirement that departure from job was causally related to
industrial injury - Writ denied.
Mandamus - Discharged city employee sought mandamus to compel her
reinstatement with back pay and an award of attorney fees - Employee's
claim for reinstatement was mooted when city reinstated her - Employee
failed to prove entitlement to back pay or attorney fees - Court of
appeals' decision affirmed.
Mandamus - Public records - R.C. 149.43 - County auditor has no
obligation under R.C. 149.43(B) to provide access to public records by
means of posting records on website - Requester of records not entitled
to attorney fees or statutory damages under R.C. 149.43(C)(1).
Attorneys at law - Misconduct - Participation in employment
agreement that restricts rights of an attorney to practice after
termination of agreement - Consent-to-discipline agreement - Public
Plaintiffs-appellants Warkietha and Demarcus Collins appeal from a
decision of the Hamilton County Court of Common Pleas, granting summary
judgment in favor of defendant-appellee Kroger Company and dismissing all of
the Collinses' claims. The collinses argue (1) that material issues of fact
exist for trial as to whether Kroger owed Warkietha a duty since it had
created the hazardous condition and (2) Kroger presented no evidence showing
that Warkietha had failed to exercise ordinary care for her own safety.
Schaim has appealed his conviction for assaulting a police officer.
Schaim alleges that the trial court erred in sua sponte excluding "probative
evidence" of Schaim's "medical condition," in prohibiting defense counsel
from mentioning Schaim's "medical condition" in closing argument, and in
instructing the jury on diminished capacity when Schaim did not attempt to
raise that issue at trial. He also argues (2) he was denied the effective
assistance of counsel, (3) his conviction was based upon insufficient
evidence and against the manifest weight, and (4) the trial court abused its
discretion by imposing an excessive sentence. Judgment AFFIRMED.
Defendant-appellant Contemporary Image Labeling, Inc., ("CIL") appeals
the judgment of the trial court denying its motion for attorney fees against
plaintiff-appellee, the Phillips Law Firm, Inc. Judgment AFFIRMED.
Boebinger appeals the judgment of the Hamilton County Municipal Court
convicting him of violating a protection order. Boebinger now contends that
the conviction was based on insufficient evidence and was against the
manifest weight of the evidence. Judgment AFFIRMED.
Plaintiff-appellant, North American Software, Inc. ("NAS"), appeals the
judgment of the trial court dismissing its breach-of-contract and
unjust-enrichment claims against defendant-appellee, C. Bill Elliott, for
lack of personal jurisdiction over Elliott, a California resident. In two
interrelated assignments of error, NAS now contends that the trial court
erred in granting Elliot's motion to dismiss for lack of personal
jurisdiction, and in improperly weighing the evidence submitted in support
of jurisdiction. Judgment AFFIRMED.
In Kentucky, Sestokas pleaded guilty to and was convicted of sodomy in
the first degree and sexual abuse in the first degree. He was sentenced to
an aggregate term of 20 years' incarceration. Prior to released Sestokas was
classified as a "lower moderate risk," which required him to annually
register for ten years in the state of Kentucky. Sestokas later moved to
Ohio. Sestokas received a notice from the Ohio Attorney General stating that
he had been reclassified under Senate Bill 10 as a Tier III sex offender and
that he was required to register with the local sheriff every 90 days for
life. Sestokas alleges that his reclassification under Senate Bill 10
violates the separation-of-powers doctrine. The court holds that R.C.
2950.031 and 2950.032 may not be applied to offenders previously adjudicated
by judges under Megan's Law, and the classifications and
community-notification and registration orders imposed previously by judges
be reinstated. The judgment of the trial court is reversed, and pursuant to
Bodyke, Sestokas's previous classification, community-notification, and
registration orders are reinstated.
Defendant-appellant, David McCoy, a.k.a. Dauruwd Babel Ali, appeals the
judgment of the Hamilton County Court of Common Pleas sentencing him to
prison for nonsupport of dependents. McCoy's claim that he was not subject
to the court's jurisdiction because he was a member of the "Moorish Nation."
McCoy argues (1) he was deprived of a fair hearing, (2) he was denied the
effective assistance of trial counsel, and (3) the trial court erred in
exercising jurisdiction over him. Judgment AFFIRMED.
Sureties-appellants, Bob Shropshire and Sons Bonding and Seneca
Insurance Company, Inc., appeal a judgment denying their motion for release
of surety. They argue that because they had secured Powell's presence by
extraordinary efforts and the state had agreed to a remission of a portion
of the bond forfeiture, the trial court abused its discretion by failing to
approve the settlement agreement. Judgment REVERSED and REMANDED for the
court to explain how it weighed the applicable factors or to apply the
factors if it did not do so.
Gilmore appeals a decision of the Hamilton County Juvenile Court
granting petitioner-appellee, Kevin Howard, visitation with the parties'
daughter. She contends that he lied and withheld facts at the hearing about
his alcohol and drug abuse. He lied about her denying him visitation and
demanding money in exchange for visitation. Judgment AFFIRMED.
Gray was convicted of offenses that he was knowingly in possession of
cocaine and a gun. He argues (1) there was improper conduct between the
bailiff and the jury, and that the trial court erred by not granting a new
trial, (2) that the trial court erred in overruling his motion to suppress
evidence, and (3) the guilty verdicts were contrary to law and against the
weight of the evidence. Judgment AFFIRMED.
This appeal involves disputes arising from the transfer of operation of
seven skilled nursing home facilities from defendants-appellants Mariner
Health Care, Inc., and others ("Mariner") to plaintiffs-appellees Covenant
Dove Holding Co., LLC, and others ("Covenant Dove") in 2008 pursuant to a
written settlement agreement. Mariner now appeals from the trial court's
December 9, 2009, entry granting summary judgment for Covenant Dove on its
claims for breach of contract and specific performance and from the court's
granting of a directed verdict in favor of Covenant Dove on Mariner's
counterclaims. After the trial court had entered judgment on these motions,
no issues remained for consideration by the jury, and only Covenant Dove's
attorney-fee claim remained for resolution by the trial court. Judgment
Edwards was convicted of one count of unlawful use of property in
violation of R.C. 2913.04(B). Edwards argues (1) her conviction was based on
insufficient evidence, (2) her convictions were against the manifest weight
of the evidence, (3) the assistant prosecuting attorney committed misconduct
that denied her a fair trial, and (4) she was denied the effective
assistance of counsel. Judgment AFFIRMED.
Plaintiff-appellant Mark Anderson ("Mr. Anderson") appeals from the
judgment of the Hamilton County domestic relations court that denied his
complaint for divorce against defendant-appellee Marva Anderson ("Ms.
Anderson"). According to Civ.R. 75(M), judgments for divorce "shall not be
granted upon the testimony or admission of a party not supported by other
credible evidence." Judgment AFFIRMED.
Burns was found guilty of felonious assault and sentenced him to eight
years' incarceration. Burns asserts (1) his conviction was against the
manifest weight of the evidence, (2) the trial court's imposition of the
maximum sentence was an abuse of discretion, and (3) he was denied the
effective assistance of counsel. Judgment AFFIRMED.
Walker appeals the judgments of the Hamilton County Municipal Court
convicting him of operating a vehicle under the influence of alcohol or
drugs and operating a vehicle without reasonable control. Walker asserts
that the trial court erred in denying his motion for acquittal pursuant to
Crim.R. 29(A). He also asserts that his convictions were contrary to the
manifest weight of the evidence. Judgment AFFIRMED.
On April 28, 2010, before this case had been submitted to the jury, the
trial court entered a directed verdict in favor of plaintiff-appellee Gerald
Johnson on his claims that defendant-appellant Rodney Riddle had violated
Ohio's Real Estate Broker Act2 by providing false information regarding a
real-estate transaction and by offering improper inducements to enter into a
contract to purchase real estate. The trial court awarded damages in the
amount of $40,000. Riddle did not appeal the directed-verdict entry. Instead
Riddle filed a "motion to set aside judgment" under Civ R 60(B) in the trial
court. Civ.R. 60(B) was intended to provide relief from a final judgment.
The trial court denied the motion. Riddle now appeals from that order.
Where multiple offenses contained in two indictments are of the same or
similar character and are part of a course of criminal conduct, they are
properly joined for trial under Crim.R. 8(A). When a jury is properly
instructed on the heightened scrutiny necessary to evaluate the testimony of
a cooperating witness or a codefendant, the trial court does not err in
failing to exclude the testimony of that witness altogether or in failing to
hold a hearing to evaluate the reliability of that witness's testimony. When
two offenses are committed separately or with a separate animus as to each,
the offenses are separately punishable under R.C. 2941.25.
The common pleas court did not err in declining to grant defendant
relief from his criminal convictions upon his Civ.R. 60(B) motions: the
motions were reviewable as postconviction petitions under R.C. 2953.21 et
seq., but they were subject to dismissal for lack of jurisdiction because
they did not satisfy R.C. 2953.21(A)(2)'s time restrictions or R.C.
2953.23's jurisdictional requirements. [But, see, PARTIAL DISSENT: Although
the common pleas court lacked jurisdiction to entertain defendant's motions
on their merits, the court should have vacated the kidnapping sentences and
remanded for resentencing on those offenses, when the original sentences had
been enhanced pursuant to sexually-violent-predator specifications charged
under former R.C. Chapter 2971. The court had jurisdiction to correct a void
sentence; and the sentences were void when the finding that the offender was
a "sexually violent predator" was not, as former R.C. 2971.01(H)(1) had
required, based on a sexually-violent-offense conviction that had existed
prior to the indictment charging the sexually-violent-predator
The trial court did not abuse its discretion in terminating a father's
child-support obligation when the child-support order was void ab initio:
the trial court did not have authority to adopt that portion of the parents'
agreed entry ordering the father to pay child support to the mother when he
was designated the sole residential parent and legal custodian of the five
minor children, and when the parents did not have split parental rights and
responsibilities. See R.C. 3119.07(A). The presumption contained in R.C.
3119.07(A) that a residential parent's child-support obligation is spent on
his children and therefore shall not become part of a child-support order
only applies to situations in which one parent is the residential parent and
the other is a nonresidential parent. A child-support worksheet was
unnecessary when a prior child-support order that had been void ab initio
was being terminated. The trial court abused its discretion and acted
unreasonably when it failed to make the termination of the father's
child-support obligation retroactive to the date that the father had
originally filed his motion to terminate: the only reason for the court's
decision to set a later date was its mistaken belief that the father had
failed to ask for a hearing on the motion.
The trial court abused its discretion by modifying the magistrate's
decision on the amount of child support owed by the father, where the
objecting spouse did not file a transcript of the magistrate's evidentiary
hearing or a substitute to support her objection, and where the trial court
did not receive any new evidence on the issue.
In a murder trial, the court did not violate the defendant's right to
confrontation under the Sixth Amendment to the United States Constitution or
Section 10, Article I of the Ohio Constitution when it permitted three adult
men to testify for the state by two-way closed-circuit television: both the
state and the court had witnessed firsthand the repeated intimidation of
these witnesses by the defendant's friends and family during the trial; the
witnesses' televised testimony was necessary to further the important public
policies of justly resolving the case and protecting the well-being of the
witnesses; and the reliability of the witnesses' testimony was assured when
the testimony was given under oath in the presence of their counsel, and
when they were subjected to a rigorous, live cross-examination before the
jury, the defendant and his counsel, and the court. The defendant's
convictions for felony murder, felonious assault, and having a weapon while
under disability were not against the weight of the evidence: while the
defendant's witnesses testified that he had not been present at the time of
the victim's shooting, three state's witnesses testified that the defendant
had pulled out a .45-caliber handgun and started shooting at the victim; and
the jury did not lose its way or create a manifest miscarriage of justice
when it chose to believe the state's witnesses instead of the defendant's
witnesses. The trial court violated R.C. 2941.25 by separately sentencing
the defendant for the felony murder and felonious assault of a single
victim, when the offenses were allied offenses of similar import, and when
the evidence did not permit a conclusion that the offenses had been
committed either separately or with a separate animus as to each.
The defendant failed to demonstrate a due-process violation that
required the suppression of evidence, where there was no demonstration that
a police officer had failed to preserve materially exculpatory evidence, or
that he had failed to preserve potentially useful evidence in bad faith. The
defendant failed to establish a Batson claim of purposeful discrimination in
jury selection, when the trial court's acceptance of the state's
race-neutral explanations for three peremptory challenges was not clearly
erroneous. Where the defendant left a bar after a scuffle with an employee,
retrieved a loaded gun, reentered the bar when the door became unlocked, and
fired at the employee until he killed him, the evidence showed sufficient
time, reflection, and activity to satisfy the elements of aggravated murder,
including prior calculation and design, even though the plan to kill was
conceived in less than five minutes. The trial court erred by failing to
merge the defendant's two convictions for having weapons under a disability,
one in violation of R.C. 2923.13(A)(2) and the other in violation of R.C.
2923.13(A)(3), where the offenses were allied offenses of similar import
committed in a single course of conduct with a single animus.
The trial court did not err under R.C. 2941.25, Ohio's multiple-count
statute, in imposing separate and consecutive sentences for the offenses of
murder and having a weapon while under a disability where the offenses were
committed separately and with a separate animus. Firearm specifications are
not subject to merger under R.C. 2941.25 because they are sentencing
enhancements and not "offenses" as contemplated by the statute. The trial
court did not err in ordering the sentences for two separate firearm
specifications to be served consecutively because the legislature, in R.C.
2929.14(E)(1)(a), has clearly expressed its intent that a sentence imposed
on a firearm specification for having a firearm on or about the offender's
person while committing a felony is to be served consecutively to a sentence
imposed on a firearm specification for discharging a firearm from a motor
Where a police officer has probable cause to believe a traffic violation
has occurred, the resulting stop of the vehicle does not violate the Fourth
Amendment to the United States Constitution. In moving to suppress evidence
obtained pursuant to a warrantless search or seizure, the defendant must
raise the grounds upon which the validity of the search or seizure is
challenged with sufficient particularity to give the prosecutor notice of
the basis for the challenge.
Defendants Henry Guzman, Director of the Ohio Department of
Public Safety, and Mike Rankin, Registrar of the Ohio Bureau of
Motor Vehicles, appeal from the district court's determination that
they were not entitled to qualified immunity from suit in this
putative class action alleging violation of the plaintiffs' rights
under the federal Driver's Privacy Protection Act (DPPA), 18 U.S.C.
§§ 2721-2725, and 42 U.S.C. § 1983. Without challenging other
aspects of the decision denying their motion to dismiss, defendants
argue that their alleged conduct did not violate the plaintiffs'
clearly established federal rights as delineated by the DPPA. We
agree, and for the reasons that follow, we reverse.
Defendant-appellant Demetrion Gross appeals the criminal
judgment and 180-month sentence issued by the district court upon
his guilty plea to being a felon in possession of a firearm. Gross
challenges the district court's denial of a motion to suppress
evidence based on an alleged unlawful seizure. He also disputes the
determination that he was an armed career criminal under 18 U.S.C. §
924(e), arguing that a prior conviction for escape was not
necessarily a "violent felony" under the Armed Career Criminal Act
("ACCA"). For the following reasons, we affirm the district court's
denial of Gross's motion to suppress as to the DNA swab and
confession, reverse the district court's denial of Gross's motion to
suppress as to the firearm, vacate the sentence imposed, and remand
to the district court for further proceedings.
James Mark Wengerd and Cheryl Sue Wengerd ("Debtors") appeal an
order of the bankruptcy court sustaining the Trustee's objection to
their homestead exemption and granting the Trustee's motion for
turnover of proceeds from the sale of the Debtors' residence.
In this appeal, Anthony M. Zingale and Barbara A. Zingale appeal
the bankruptcy court's order sustaining the Chapter 7 Trustee's
objection to the Debtors' claim of exemption. The Debtors are
seeking to exempt the non-refundable portion of the Child Tax Credit
claimed by the Debtors on their 2009 federal income tax return. The
bankruptcy court held that the Debtors could not claim as exempt the
non-refundable portion of the Child Tax Credit because it was not
considered a "payment" under Ohio Rev. Code § 2329.66(A)(9)(g). For
the reasons set forth below, the Panel AFFIRMS the order of the
Plaintiffs-appellants are machine repairmen presently or
formerly employed by Chrysler Group, L.L.C. or Daimler Chrysler
Corporation ("Chrysler") at two plants located in Toledo, Ohio.
Plaintiffs claim that their union, defendants-appellees
International Union, United Automobile, Aerospace and Agricultural
Implement Workers of America ("UAW") and International Union, United
Automobile, Aerospace and Agricultural Implement Workers of America,
Local No. 12 ("Local 12"),1 breached their duty of fair
representation by favoring certain skilled workers - millwrights and
electricians - over plaintiffs - machine repairmen. In October 2007,
the district court granted defendants' motion for summary judgment,
holding that plaintiffs had failed to exhaust internal union
remedies. On appeal, this court reversed, instructing the district
court to consider whether plaintiffs' claims were barred by the
statute of limitations. On remand, defendants again moved for
summary judgment. The district court granted the motion, holding
that a portion of plaintiffs' claims were barred by the statute of
limitations and that the remaining claims failed on their merits. On
appeal, plaintiffs challenge both of these findings. Upon review, we
affirm the district court in all respects.
The United States District Court for the Northern District of
Ohio denied the habeas petition of Tyrone Noling, who is facing the
death penalty. Noling then filed with this Court a petition to file
a successive petition (No. 07-3989) and a petition for a certificate
of appealability (No. 08-3258). We consolidated these matters,
denied the successive petition, and granted a certificate of
appealability on four distinct issues. Before oral argument, Noling
filed another petition to file a successive petition (No. 10-3884).
For the following reasons, we AFFIRM the judgment of the district
court and DENY Noling's latest motion to file a successive petition.
Defendant Michael V. Chiolo admitted violating the terms of his
supervised release by engaging in acts of domestic violence. The
district court sentenced Chiolo to thirty-seven months' imprisonment
for this violation, a term above the federal sentencing guidelines
range of five to eleven months. The district court sufficiently
explained the rationale behind its sentencing decision. Also, while
the court did not expressly address some of Chiolo's non-frivolous
arguments, its sentencing rationale was logically responsive to
those conceptually simple arguments. For these reasons, the district
court's sentence was procedurally reasonable.
U.S. Sixth Circuit Court of Appeals: Other States Cases
In this petition for a writ of mandamus, David Sutton, Jr., seeks an
order directing the Commissioner of Social Security to exercise his
discretion to reopen proceedings and reinstate a 1985 decision that
awarded him disability benefits. The Commissioner has responded that
Sutton is barred by the doctrine of res judicata and, alternatively,
that Sutton's petition should fail on the merits. Neither of these
arguments needs to be addressed, however, because the petition is not
properly before this court.
Defendant Alan Mackety challenges his 300-month sentence as
procedurally and substantively unreasonable. We conclude that the
district court's blanket policy concerning the one-level point reduction
for acceptance of responsibility under U.S.S.G. § 3E1.1(b) affected the
calculation of the Guidelines range and usurped the Government's
discretion to move for a reduction under § 3E1.1(b), rendering Mackety's
sentence procedurally unreasonable. Accordingly, we VACATE the sentence
and REMAND for resentencing.
Judge. J. James Rogan, chapter 7 trustee, appeals an order of the
bankruptcy court granting summary judgment in favor of American General
Home Equity, Inc. on the Trustee's adversary complaint seeking to avoid
a mortgage granted to American General by chapter 7 debtor Donna
Brockman on the grounds that the mortgage did not properly describe the
property encumbered by the mortgage.
Plaintiff, New Albany Tractor, appeals the Federal Rule of Civil
Procedure 12(b)(6) ("failure to state a claim upon which relief can be
granted") dismissal of its complaint alleging violations of the
Robinson-Patman Act, an amendment to the Clayton Act. Plaintiff also
contends that it should have been allowed to amend the complaint, or,
alternatively, it should have been dismissed without prejudice. The
basic question before us is the effect of two recent Supreme Court
decisions, Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and
Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), which addressed pleading
requirements under Rule 8 of the Federal Rules of Civil Procedure
("short and plain statement of the claim"). For the reasons that follow,
we agree that these cases required the district court to dismiss the
complaint with prejudice.
Plaintiff-appellant Watson Carpet & Floor Covering, Inc. (Watson
Carpet) is a carpet dealer in competition with Carpet Den, Inc. and its
owner, Rick McCormick. Watson Carpet sued Carpet Den, McCormick, and
carpet supplier Mohawk Industries, Inc., for conspiring to restrain
trade in violation of Section 1 of the Sherman Act. Despite Watson
Carpet's detailed allegations of an agreement to restrain trade, the
district court dismissed the complaint for failure to state a claim,
invoking the Supreme Court's decision in Bell Atlantic Corp. v. Twombly,
550 U.S. 544 (2007). Watson has appealed. Carpet Den and McCormick have
cross-appealed the district court's ruling that the settlement release
did not cover the 2007 refusal to sell. We REVERSE the dismissal of the
complaint and hold that Watson Carpet adequately stated a claim for
relief. With respect to the cross-appeal, we AFFIRM the district court's
determination that the 2007 refusal to sell is outside the scope of the
Defendant Roberto Ramirez-Perez pleaded guilty to being present in
the United States after having been previously deported subsequent to an
aggravated felony conviction. The district court enhanced
Ramirez-Perez's offense level and criminal history score because it
determined that he had a 1994 drug trafficking conviction for which the
sentence imposed exceeded 13 months. The district court then sentenced
him to 70 months' imprisonment. Ramirez-Perez now appeals, challenging
the district court's determination that his prior conviction resulted in
a sentence that exceeded 13 months. For the reasons stated below, we
This is an appeal from an order granting summary judgment to the
Chapter 7 Trustee (the "Trustee") and denying summary judgment to Fifth
Third Mortgage Company ("Fifth Third") on the Trustee's complaint
pursuant to 11 U.S.C. § 544 seeking to avoid the mortgage held by Fifth
Third on real property owned by the Debtors.
Petitioner David Eugene Matthews, who was sentenced to death for
murder by the State of Kentucky, appeals the district court's order
denying Petitioner's claims and dismissing his petition for a writ of
habeas corpus filed pursuant to 28 U.S.C. § 2254. For the reasons set
forth below, we AFFIRM in part and REVERSE in part.
Valentine Grden says that Leikin, Ingber & Winters, P.C. violated
the Fair Debt Collections Practices Act in two ways. First, in a
state-court debt-collection action against Grden, Leikin served Grden
with a document appearing to be a motion for default judgment, although
Grden had not missed the deadline for answering the complaint. Second,
when Grden thereafter called Leikin to verify his account balance,
Leikin responded with incorrect amounts. The district court granted
summary judgment to Leikin, finding that the motion for default was not
deceptive and that Leikin's communications containing the wrong amounts
were not covered by the Act. We reverse as to the motion and affirm as
to the balance statements.
Plaintiff, Stephanie Williams, sued her employer, CSX Transportation
Company, Inc. ("CSX"), for allegedly subjecting her to both racially and
sexually hostile work environments. The district court held that
Williams failed to file a document that meets the test for a "charge"
with the Equal Employment Opportunity Commission on her claim of a
sexually hostile work environment and, thus, failed to exhaust her
administrative remedies. For that reason, the district court granted
summary judgment to CSX on that claim. We disagree and reverse. As for
Williams's racially hostile work environment claim, the district court
granted judgment as a matter of law to CSX at the close of Williams's
case in chief. The district court reasoned that her evidence of a
racially hostile work environment was not sufficiently "severe" or
"pervasive" to create a jury question. On that claim, and on a
collateral evidentiary issue, we affirm.
Defendant Fredrick Mays appeals from the denial of his motion to
suppress evidence of a firearm seized during an encounter with Memphis
police officers. He was charged in a one-count indictment with being a
felon in possession of a firearm. 18 U.S.C. § 922(g). After his motion
to suppress was denied, he requested a bench trial, agreeing to
stipulate to all of the elements of the offense while maintaining his
right to appeal. The sole issue on appeal is whether the arresting
officers had the requisite reasonable suspicion to conduct a Terry stop
and search of defendant's person. See Terry v. Ohio, 392 U.S. 1 (1968).
In this appeal, Russell Looney ("debtor") appeals the bankruptcy
court's determination that the debt he owed to Old Republic Title
Company of Tennessee ("Old Republic"), in the amount of $286,940, is
nondischargeable. For the reasons that follow, we AFFIRM.
This is an appeal from the district court's determination that the
minimum coverage provision of the Patient Protection and Affordable Care
Act is constitutionally sound. Among the Act's many changes to the
national markets in health care delivery and health insurance, the
minimum coverage provision requires all applicable individuals to
maintain minimum essential health insurance coverage or to pay a
penalty. 26 U.S.C. § 5000A. This opinion is divided into several parts.
First, it provides background on the Affordable Care Act and the minimum
coverage provision. Second, it addresses this Court's jurisdiction.
Third, it considers whether the provision is authorized by the Commerce
Clause of the Constitution. Fourth, it declines to address whether the
provision is authorized by the General Welfare Clause. We find that the
minimum coverage provision is a valid exercise of legislative power by
Congress under the Commerce Clause and therefore AFFIRM the decision of
the district court.
Hometown Folks, LLC entered into an Agreement with S & B Wilson
Corporation to buy eleven Burger King restaurants. S & B Wilson
terminated the Agreement, and Hometown sued for breach of contract and
breach of the duty of good faith and fair dealing. After a trial, the
jury found that S & B Wilson had properly terminated the Agreement but
had breached the duty of good faith and fair dealing, and it awarded
Hometown $190,907.27 in damages. Over one year later, the district court
entered a partial judgment relative to the jury verdict. The district
court denied specific performance and awarded Hometown $5,176.24 of the
$424,282.19 in attorneys' fees and expenses that it incurred in
connection with the litigation. The district court correctly denied S &
B Wilson's motion for judgment as a matter of law as to the claim
alleging breach of the duty of good faith and fair dealing. However, we
REVERSE the district court's denial of judgment as a matter of law to S
& B Wilson on damages. Furthermore, although the district court used an
acceptable method to determine a reasonable attorneys' fee award, it
applied this method incorrectly. Therefore, we REVERSE the award of
attorneys' fees and REMAND for a new determination. Because we grant
judgment as a matter of law to S & B Wilson on damages, we need not
address Hometown's remaining claims that the district court erred in
failing to enter judgment promptly after the jury verdict and in denying
Hometown's claim for specific performance.
Gary Theunick, Frederick MacKinnon, and Maxwell Garnett
(collectively, "Defendants") were convicted of possessing automatic
weapons and making false entries on weapons application and transfer
forms in violation of 28 U.S.C. §§ 5861(d), 5861(l), and 7206(2). The
Defendants raise various issues on appeal, including the
constitutionality of the statutes charged, double jeopardy, discovery
errors, and sentencing errors. For the following reasons, we AFFIRM.
Petitioner Joe Clark Mitchell appeals the district court's denial of
his motion for relief from judgment, which he brought as an "independent
action" in equity, as provided for by Federal Rule of Civil Procedure
60(d)(1). We AFFIRM.
In this action brought under 42 U.S.C. § 1983, Plaintiff Germaine
Bomar alleges that Officer Daniel Main, the sole remaining defendant,
violated her clearly established right not to be subjected to excessive
force. Bomar claims that Main pepper-sprayed her in the eye and punched
her in the jaw-both after she had been successfully restrained and
handcuffed. In the proceedings below, Defendants denied that Main took
those actions and moved for summary judgment based on qualified
immunity. The district court held that a genuine issue of material fact
existed for trial and denied the motion. Main now appeals that order,
and we dismiss his appeal for lack of jurisdiction.
Proposal 2 is a successful voter-initiated amendment to the Michigan
Constitution. In relevant part, it prohibits Michigan's public colleges
and universities from granting "preferential treatment to any
individual or group on the basis of race, sex, color, ethnicity, or
national origin." Mich. Const. art. I, § 26. Our task is to determine
whether Proposal 2 is constitutional under the Equal Protection Clause
of the Fourteenth Amendment to the United States Constitution.
Fortunately, the slate is not blank. The Supreme Court has twice held
that equal protection does not permit the kind of political
restructuring that Proposal 2 effected. See Washington v. Seattle Sch.
Dist. No. 1, 458 U.S. 457 (1982); Hunter v. Erickson, 393 U.S. 385
(1969). Applying Hunter and Seattle, we find that Proposal 2
unconstitutionally alters Michigan's political structure by
impermissibly burdening racial minorities. Accordingly, we REVERSE the
district court's grant of summary judgment for the Defendants-Appellees
and order the court to enter summary judgment in favor of the
Plaintiffs-Appellants. Also, we AFFIRM the district court's decision
granting the Cantrell Plaintiffs' motion for summary judgment as to Eric
Russell, and AFFIRM the district court's decision denying the University
Defendants' motion to be dismissed as parties.