Daily Case Update

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.  This page is updated regularly.  We also keep an archive of our summaries.

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Feb. 22nd - 26th, 2010

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

TOPICS:
- Workers’ compensation
- Attorneys at law / Misconduct
- Credit card debt / Moving party entitled to judgment
- Personal injury
- Sentence / Due process / Fair trial / Ineffective counsel / Evidence
- Loud noises ordinance / Insufficient evidence / Witness
- Anders v. California / Frivolous appeal
- Medical Malpractice / Standard-of-care / Judgment notwithstanding the verdict
- EVidence / Manifest weight / Sufficiency / Motion for mistrial
- Municipal / Quilified immunity / Negligent entrustment
- Personal injury / Civil rule 13 / Compulsory counterclaim
- Sex Offenses / Constitutional law / Civil
- Sentencing / Jury Instruction / Plea / Search and Seizure
- Writ of mandamus / Conspiracy to suppress and eliminate competition
- Diversity jurisdiction / Limited partnership / Citizenship
- Admiralty action / Repair costs and lost profits recovery / Liability / Comparative negligence
- Social Security Supplemental Income / Disability insurance / Testimony
- Writ of habeas corpus / Exclusion of evidence
- Telecommunications Act / Monopoly / Interconnection agreements
- Aiding and abetting / Breached a fiduciary duty / Tortious interference
 

Ohio Supreme Court

 

State ex rel. R.A.M.E., Inc. v. Indus. Comm. (Slip Opinion)(Feb. 24, 2010)
- http://www.sconet.state.oh.us/rod/docs/pdf/0/2010/2010-ohio-575.pdf
- Workers’ compensation — Ohio Adm.Code 4123:1-3-03(J)(1) — Employer’s
failure to provide safety equipment not established — Reconsideration
ordered.

State v. Antenori (Slip Opinion)(Feb. 24, 2010)
- http://www.sconet.state.oh.us/rod/docs/pdf/0/2010/2010-ohio-576.pdf
- Appeal dismissed as improvidently accepted.

State v. Thomas (Slip Opinion)(Feb. 24, 2010)
- http://www.sconet.state.oh.us/rod/docs/pdf/0/2010/2010-ohio-577.pdf
- Judgment of the court of appeals vacated, judgment of the trial court
vacated, and cause remanded to the trial court for resentencing.

State ex rel. Natl. Employers Network Alliance, Inc. v. Ryan (Slip Opinion)(Feb. 24, 2010)
- http://www.sconet.state.oh.us/rod/docs/pdf/0/2010/2010-ohio-578.pdf
- Workers’ compensation — Availability of administrative appeal
precludes relief by mandamus.

Disciplinary Counsel v. Horton (Slip Opinion)(Feb. 24, 2010)
- http://www.sconet.state.oh.us/rod/docs/pdf/0/2010/2010-ohio-579.pdf
- Attorney misconduct, including neglecting an entrusted legal matter,
failing to promptly pay funds a client is entitled to receive, and
engaging in conduct involving dishonesty, fraud, and deceit — Two-year
suspension, with second year stayed on conditions.

Allen Cty. Bar Assn. v. Brown (Slip Opinion)(Feb. 24, 2010)
- http://www.sconet.state.oh.us/rod/docs/pdf/0/2010/2010-ohio-580.pdf
- Attorneys at law — Misconduct — Failure to act with reasonable
diligence — Failure to notify client of receipt of funds — One-year
suspension, stayed on conditions.
 

First District Court of Appeals

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*** Judgments***

Capital One vs. Colleen Stanton (Feb. 24, 2009)
- http://www.hamilton-co.org/appealscourt/docs/decisions/C-090361_02242010.pdf
- Stanton argues that the trial court erred in granting summary judgment
to Capital One Bank. Capital One filed a complaint alleging that Stanton
had not paid her credit-card bill and that she owed the company
$3,475.33 plus interest. After Stanton answered, Capital One sent her
requests for admissions that, when left unanswered, established that she
owed the money and had no defense to the claim. Capital One then asked
the trial court to grant summary judgment in its favor. Judgment
AFFIRMED.

Yolanda Jones-Johnson vs. Gray Road Fill Inc., et al. (Feb. 24, 2009)
- http://www.hamilton-co.org/appealscourt/docs/decisions/C-090409_02242010.pdf
- Plaintiff-appellant, Yolanda Jones-Johnson,judgment entered by the Hamilton County Court of Common Pleas in favor
of defendant-appellee, Gray Road Fill, Inc., in a personal-injury
action. Judgment AFFIRMED.

State of Ohio vs. Lamont L. Lear (Feb. 24, 2009)
- http://www.hamilton-co.org/appealscourt/docs/decisions/C-090348_02242010.pdf
- Lear was convicted of felonious assault and an accompanying firearm
specification. The trial court sentenced him to three years’
incarceration on each and ordered the sentences to be served
consecutively. Lear argues (1) that his conviction was against the
weight and sufficiency of the evidence, (2) ineffective counsel, (3)
right to fair trial, (4) due process rights violated, and (5) his
sentence was contrary to law. Judgment AFFIRMED.

State of Ohio vs. Edward Lindenschmid (Feb. 24, 2009)
- http://www.hamilton-co.org/appealscourt/docs/decisions/C-090329_02242010.pdf
- Lindenschmid appeals his conviction for violating Cincinnati Municipal
Code Section 910-7, the city’s loud-noises ordinance. Lindenschmid
argues that the evidence was insufficient to support his conviction and
it was error to convict him because the complaining witness had not
given him “the chance to reduce the volume on his own before calling the
police.” Judgment AFFIRMED.

State of Ohio vs. Romero Holloway (Feb. 24, 2009)
- http://www.hamilton-co.org/appealscourt/docs/decisions/C-090302_02242010.pdf
- Holloway appeals from a conviction and sentence imposed by the
Hamilton County Court of Common Pleas. Following a bench trial, the
trial court had found Holloway guilty of assault and sentenced Holloway
to 180 days in jail. Pursuant to Anders v. California and its progeny,
Holloway’s appointed appellate counsel has advised this court in a
no-error brief that, after a thorough review of the record, he has
concluded that the appeal is frivolous. Judgment AFFIRMED.

Natalie Bechtol, Individually, and as the Executrix of the Estate of
Kenneth L. Bechtol vs. Stephen M. Winhusen, M.D., (Feb. 24, 2009)
- http://www.hamilton-co.org/appealscourt/docs/decisions/C-090164_02242010.pdf
- Natalie Bechtol appeals from the trial court’s entry of judgment in
favor of Stephen Winhusen, M.D., and Greater Cincinnati Associated
Physicians, Inc., (“GCAP”) and from the trial court’s entry denying her
motion for judgment notwithstanding the verdict or for a new trial.
Bechtol asserts that the trial court erred (1) by giving a misleading
standard-of-care instruction to the jury, (2) when it refused to allow
Dr. Catherine Willmore to testify with respect to the standard of care,
and (3) when it denied Bechtol’s motion for judgment notwithstanding the
verdict or for a new trial. Judgment AFFIRMED.

State of Ohio vs. Clayton Neel (Feb. 24, 2009)
- http://www.hamilton-co.org/appealscourt/docs/decisions/C-090037_02242010.pdf
- Neel appeals the judgment of the Hamilton County Court of Common Pleas
convicting him of tampering with evidence and tampering with records.
Neel argues that (1) his convictions were based on insufficient evidence
and were against the manifest weight of the evidence, and (2) the trial
court erred in overruling his motion for a mistrial. Judgment AFFIRMED.

Gary T. McNeal, et al. vs. Misty T. Morris, et al. (Feb. 24, 2009)
- http://www.hamilton-co.org/appealscourt/docs/decisions/C-061061_02242010.pdf
- Defendants-appellants, Gary T. McNeal and the city of Blue Ash, appeal
the denial of their motion for summary judgment on the issue of immunity
under R.C. Chapter 2744. The Morrises did not adduce any competent
evidence that Blue Ash had negligently entrusted the police cruiser to
McNeal, the trial court erred in overruling the motion for summary
judgment with respect to that claim only. And so we reverse that part of
the trial court’s judgment involving the negligent-entrustment claim and
remand this case for the entry of summary judgment on that claim in Blue
Ash’s favor. In all other respects, we overrule the assignment of error
and affirm the judgment of the trial court.

Tammy Whitaker, et al. v. Michael Jones, et al. (Feb. 26, 2009)
- http://www.sconet.state.oh.us/rod/docs/pdf/1/2010/2010-ohio-668.pdf
- In a personal-injury action where the plaintiffs’ insurer had paid for
some of their medical expenses, the trial court was without authority to
order the plaintiffs to reimburse the insurer, when the insurer had
sought such relief without pleading a compulsory counterclaim under
Civ.R. 13(A).

State of Ohio vs. Marcus Beck (Feb. 26, 2009)
- http://www.sconet.state.oh.us/rod/docs/pdf/1/2010/2010-ohio-669.pdf
- Senate Bill 10 was properly applied to reclassify the petitioner as a
Tier III sex offender, when his prior status as a sexually oriented
offender and his duty to register had arisen by operation of law upon
his conviction for sexual battery and his release from prison for that
offense after July 1, 1997; under former R.C. Chapter 2950, the
petitioner had a duty to register as a sexually oriented offender for
ten years, even though he had never registered, and there had never been
a hearing or a court order to determine his status.
 

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

 

Kevin Tolliver v. Michael Sheets (Feb. 22, 2010)(Appeal from S.D. OH)
- http://www.ca6.uscourts.gov/opinions.pdf/10a0048p-06.pdf
- Kevin Tolliver was convicted in Ohio state court in 2002 of murdering
his live-in girlfriend, Claire Schneider, in the early morning hours of
December 29, 2001. On January 18, 2008, the district court dismissed
Tolliver’s petition for a writ of habeas corpus, but certified two
issues for appeal: (1) whether Tolliver’s statements to police on the
night of Schneider’s death were unconstitutionally obtained and thus
were improperly admitted at trial; and (2) whether Tolliver established
cause and prejudice for procedural default of an ineffective assistance
of appellate counsel claim. We conclude that, while portions of
Tolliver’s interview with the police were obtained
unconstitutionally, the trial court’s error in admitting the
unconstitutionally-obtained statements was harmless. We also conclude
that Tolliver has not demonstrated good cause for procedural default of
his ineffective assistance claim. Accordingly, we AFFIRM the district
court’s denial of the petition for a writ of habeas corpus.

USA v. Mark Thornton (Feb. 23, 2010)(Appeal from S.D. OH)
- http://www.ca6.uscourts.gov/opinions.pdf/10a0050p-06.pdf
- A jury convicted Mark Thornton of conspiracy to possess with intent to
distribute cocaine and cocaine base (Count 1), possession with intent to
distribute cocaine (Count3), and possession of a firearm in furtherance
of a drug trafficking conspiracy (Count 5). Thornton, who had three
prior drug convictions, was sentenced to life imprisonment on Count 1
pursuant to a mandatory minimum sentence, as well as consecutive
sentences of 264 months imprisonment on Count 3 and 60 months
imprisonment on Count 5. Thornton appeals his conviction and sentence,
asserting a number of procedural and constitutional errors. We affirm.

In re: Lawrence Acker v. 
AND USA v. Arctic Glacier International, (Feb. 22, 2010)(Appeal from S.D. OH)
- http://www.ca6.uscourts.gov/opinions.pdf/10a0053p-06.pdf
- This petition for a writ of mandamus and a related appeal arise from
the proceedings in United States v. Arctic Glacier Int’l Inc., No.
1:09-cr-00149 (S.D. Ohio). In that case, Arctic Glacier International
was charged in a criminal information with violating 15 U.S.C. § 1 by
participating in “a conspiracy to suppress and eliminate competition by
allocating packaged-ice customers in southeastern Michigan and the
Detroit, Michigan metropolitan area.” The petitioners describe
themselves as “nine consumers and one business that paid too much for
packaged ice as a result of Arctic Glacier’s offense” based on purchases
both within and outside of the geographic area of the offense. Their
civil action for damages is pending in the Eastern District of Michigan.
In re Packaged Ice Antitrust Litig., No. 08-md- 1952 (E.D. Mich.). In
these criminal proceedings, tcrime under the Crime Victims’ Rights Act,
18 U.S.C. § 3771. For these reasons, the petition for a writ of mandamus filed as
No. 10-3159 is DENIED. The motion to dismiss the appeal in No. 10-3160 is GRANTED.
The motion to consolidate Nos. 10-3159/3160 is DENIED as moot. The temporary
stay previously entered is DISSOLVED.

V&M Star, LP v. Centimark Corporation (Feb. 24, 2010)(Appeal from N.D. OH)
- http://www.ca6.uscourts.gov/opinions.pdf/10a0054p-06.pdf
- The present case involves a lawsuit brought by V&M Star, LP against
Centimark Corporation. Summary judgment was granted in favor of
Centimark by the district court, and V&M now appeals. For the reasons
set forth below, we REMAND the case to the district court for further
proceedings consistent with this opinion.

Bessemer & Lake Erie Railroad v. Seaway Marine Transport (Feb. 25, 2010)(Appeal from N.D. OH)
- http://www.ca6.uscourts.gov/opinions.pdf/10a0055p-06.pdf
- When the Enterprise, a large cargo ship, positioned itself to receive
a load of coal on the shores of Lake Erie, it struck a land-based
coal-loading machine operated by Bessemer & Lake Erie Railroad Company
and The Pittsburgh & Conneaut Dock Company. Bessemer and its affiliate
filed this admiralty action against the
Enterprise and its owners and operators, Seaway Marine Transport, Upper
Lakes Shipping Inc. and Upper Lakes Group Inc., seeking recovery of
repair costs and lost profits. The district court granted Bessemer
summary judgment as to liability, finding Seaway and its affiliates
wholly at fault. When it came to damages, the district court awarded
$522,000 in cost-of-repair damages to Bessemer but determined that
Bessemer did not adequately disclose the basis of its lost-profits claim
and thus granted Seaway summary judgment on that claim. We affirm the
district court’s rejection of Bessemer’s lost-profits claim but reverse
in part as to liability, finding a genuine dispute of fact over
Bessemer’s comparative negligence.
 

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

 

Angela Wright-Hines v. Commissioner of Social Security (Feb. 23, 2010)(Appeal from W.D. TN)
- http://www.ca6.uscourts.gov/opinions.pdf/10a0049p-06.pdf
- Pro se appellant Angela Wright-Hines appeals from the Commissioner of
Social Security’s denial of her claims for supplemental security income
(SSI) and disability insurance benefits (DIB). The ALJ found
Wright-Hines was not disabled because her residual functional capacity
allowed her to perform past relevant work as a cashier. The district
court adopted the magistrate judge’s Report and Recommendation (R&R) and
upheld the decision of the ALJ. Liberally construed, Wright-Hines’
appeal raises four arguments: (1) the Vocational Expert (VE) relied on
by the ALJ had prior contact with Wright-Hines, and the VE’s testimony
was therefore improper; (2) the ALJ’s hypothetical question to the VE
failed to include all of Wright-Hines’ physical limitations; (3) there
was no evidence that Wright-Hines had performed past work as a cashier
for more than three months; and (4) the district court erred in denying
Wright-Hines’ motion for default judgment. We affirm.

Gagne v. Booker (Feb. 23, 2010)(Appeal from E.D. MI)
- http://www.ca6.uscourts.gov/opinions.pdf/10a0051p-06.pdf
- Petitioner Lewis Gagne and his co-defendant, Donald Swathwood, were
each charged with three counts of criminal sexual misconduct for
forcibly and simultaneously engaging in sexual activities with Gagne’s
ex-girlfriend, Pamela Clark. All of the charges arose out of events
occurring over the course of one night. The key question at trial was
one of consent. The jury convicted Gagne of two counts, and Swathwood of
three. Gagne filed a petition for a writ of habeas corpus, 28 U.S.C. §
2254, and the district court granted him relief on the basis that the
state trial court’s decision to exclude certain evidence had violated
Gagne’s due process right to present a meaningful defense. Respondent,
Warden Raymond Booker, represented by the Michigan Attorney General
(“the State”), appealed. We now affirm.

Michigan Bell Telephone Compan v. J. Lark (Feb. 23, 2010)(Appeal from E.D. MI)
- http://www.ca6.uscourts.gov/opinions.pdf/10a0052p-06.pdf
- A state telephone-utility commission and several competitive local
exchange carriers appeal a judgment in which the district court vacated
the commission’s order requiring the incumbent local exchange carrier to
provide certain “entrance facilities” at wholesale prices. Finding the
appellants’ arguments unpersuasive, we AFFIRM.

Miles Farm Supply, LLC v. Helena Chemical Company (Feb. 25, 2010)(Appeal from W.D. KY)
- http://www.ca6.uscourts.gov/opinions.pdf/10a0056p-06.pdf
- Miles Farm Supply challenges the district court’s summary disposition
of its Kentucky-law claims that Helena Chemical Company aided and
abetted a breach of fiduciary duty by three Miles employees and that, by
aiding those employees, Helena tortiously interfered with Miles’
prospective contractual relations. Because Miles has failed as a matter
of law to show that Helena had actual knowledge that the three employees
were breaching a fiduciary duty, we affirm.
 

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