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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Aug. 21 & 22, 2008

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

TOPICS:
- R.C 2941.25 / Sex Offenses
- Workers' Compensation
- Civil Miscellaneous / Constitutional law / Civil
- Sentencing Guidelines
- Electronic Funds Transfer Act
- Purchase Agreement / Contract’s arbitration clause
- Funeral Protest Provision / §1983 action
- Financial Institutions Reform Recovery and Enforcement Act / Jurisdiction
- Fair Debt Collection Practices Act / Statute of limitations
- Ohio Mortgage Broker Act
- Sentencing / Evidence / Witness
- Social Security disability
- Bankruptcy / Attorneys’ fees
 

Ohio Supreme Court

 

No Opinions.
 

First District Court of Appeals

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Cincinnati v. York Masons Bldg. Assn. (Aug. 22, 2008)(2008-ohio-4271)
-  http://www.sconet.state.oh.us/rod/docs/pdf/1/2008/2008-ohio-4271.pdf
-  A corporation had standing to file a counterclaim even though its articles of incorporation had been cancelled at the time of the filing, where it was shown that the articles were later reinstated; during the time between cancellation and reinstatement, it was a de facto corporation with all the power and authority of a de jure corporation. Because the city’s policies and procedures for notifying a building owner of a building’s impending demolition were constitutional, the city could not be held liable on a theory of respondeat superior, under Section 1983, Title 42, U.S.Code, for the acts of its employees. The building owner’s right to due process was not violated because it had actual notice of the impending demolition of the building. [But, see, DISSENT: Due process was denied when the city had actual knowledge of an interested party and failed to notify him about the demolition hearing; when that party learned about the demolition after the hearing, it was insufficient to cure the lack of notice and the resulting due-process violation that led to the demolition order in the first instance.]
 
Benton v. Hamilton Cty. Educational Serv. Ctr. (Aug. 22, 2008)(2008-ohio-4272)
-  http://www.sconet.state.oh.us/rod/docs/pdf/1/2008/2008-ohio-4272.pdf
-  In a workers’ compensation case, the trial court erred in dismissing for lack of subject-matter jurisdiction an employer’s appeal that questioned an award of benefits on grounds of fraud: the claim of fraud directly concerned the issue whether the employee’s initial injury had occurred outside the course and scope of her employment and was thus appealable under R.C. 4123.512(A) because it sought to terminate the employee’s right to continue participating in the workers’ compensation fund.
 
State v. North (Aug. 22, 2008)(2008-ohio-4273)
-  http://www.sconet.state.oh.us/rod/docs/pdf/1/2008/2008-ohio-4273.pdf
-  The trial court did not err when it imposed separate sentences for two kidnapping charges: each kidnapping was committed with a separate animus, and each was not merely incidental to the rapes and the aggravated robbery also committed by the defendant. The trial court’s determination that the defendant was a sexual predator was not against the manifest weight of the evidence: the defendant had raped a young woman with extreme cruelty, he had an extensive criminal record and had engaged in abusive behavior toward other women, and a psychologist had reported that he had an antisocial-personality disorder and had been evaluated to pose a high risk of reoffending.
   

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

 

USA v. Poole (August 21, 2008)(Appeal from N.D. OH)
-  http://www.ca6.uscourts.gov/opinions.pdf/08a0307p-06.pdf
-  Poole, Jr., appeals his convictions, following a jury trial, of conspiracy to possess with intent to distribute cocaine, cocaine base, and marijuana (Count 1), in violation of 21 U.S.C. §§ 841(a)(1) and 846, and possession of cocaine base with intent to distribute (Count 12), in violation of 21 U.S.C. § 841(a)(1). He also appeals his concurrent 151-month prison sentences and five-year supervised-release terms. The parties have waived oral argument, and this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).
 
Clemmer v. Key Bank Natl Assoc (August 22, 2008)(Appeal from N.D. OH)
-  http://www.ca6.uscourts.gov/opinions.pdf/08a0309p-06.pdf
-  As the district court succinctly summarized, this case turns on whether the Electronic Funds Transfer Act (the “EFTA”) permits an automated teller machine’s on-screen notice to read that a fee “may” be charged when a fee “will” be charged. Clemmer v. Key Bank, N.A., No. 06-2654, 2007 WL 5303533, at *2 (N.D. Ohio June 20, 2007). Michael Clemmer, a consumer of ATM services, argues that the notice must explicitly state that a consumer “is” or “will be” (or some variant thereof) charged a fee. The district court, however, concluded that use of the less definite “may” coupled with the more definite requirement that a user press “yes” to accept the fee to continue the transaction put the user on sufficient notice that a fee would be incurred. We agree, and affirm summary judgment in favor of Key Bank National Association (“Key Bank”).
 
JPD, Inc. v. Chronimed Holdings, Inc. (August 22, 2008)(Appeal from S.D. OH)
-  http://www.ca6.uscourts.gov/opinions.pdf/08a0310p-06.pdf
-  In late 2005, Defendant Chronimed Holdings bought Northland Pharmacy from Plaintiff James P. DiCello. Chronimed paid DiCello twelve million dollars up front and promised additional cash if Northland’s earnings over the next year hit a benchmark. The parties agreed to arbitrate any dispute over the “calculation” of Northland’s earnings and “all issues having a bearing on such dispute.” When Chronimed later informed DiCello that it would not pay the added cash because Northland’s earnings failed to reach the benchmark, DiCello sued, claiming that Chronimed owed the additional payment because the earnings target would have been met had Chronimed operated the business as the contract promised. Chronimed promptly moved the district court to compel arbitration, but the district court held that Chronimed waived that contractual right through its prelitigation conduct. Because we disagree, and because we find that DiCello’s claims fall within the scope of the contract’s arbitration clause, we vacate and remand with instructions to compel arbitration.
 
Phelps-Roper v. Strickland (August 22, 2008)(Appeal from N.D. OH)
-  http://www.ca6.uscourts.gov/opinions.pdf/08a0312p-06.pdf
-  This case involves a facial challenge to a provision of Ohio Rev. Code § 3767.30 (“Funeral Protest Provision”), which prohibits “picketing” or “other protest activities,” within 300 feet of the funeral or burial service, from one hour before until one hour after the funeral or burial service. We hold that the Funeral Protest Provision is a reasonable, content-neutral regulation of the time, place, and manner of speech.
 
Village of Oakwood v. State Bank and Trust Company (August 22, 2008)(Appeal from N.D. OH)
-  http://www.ca6.uscourts.gov/opinions.pdf/08a0313p-06.pdf
-  On February 1, 2002, the Oakwood Deposit Bank Company (Oakwood) failed. The Federal Deposit Insurance Corporation (FDIC) was immediately appointed as receiver. On the following day, the FDIC signed a Purchase and Assumption Agreement (P&A Agreement) with State Bank and Trust Company (State Bank) that caused the insured deposits of Oakwood to be transferred to State Bank. A group of partially uninsured depositors (collectively referred to as the Uninsured Depositors) filed a complaint in state court against State Bank in an attempt to recover the value of their uninsured deposits. The FDIC removed the case to federal district court. Despite a ruling on the merits by the district court, this court on appeal subsequently ordered that the judgment be vacated and the case remanded to the state court because the FDIC was not yet a party when it had sought removal. After remand, State Bank filed a third-party complaint against the FDIC, seeking indemnification under the terms of the P&A Agreement. The state court allowed the third-party complaint, following which the FDIC again removed the case to federal district court. State Bank and the FDIC then renewed their motions to dismiss the Uninsured Depositors’ claims or for summary judgment, and the Uninsured Depositors once more filed a motion to remand. The district court granted State Bank’s and the FDIC’s motions for summary judgment, finding that the Uninsured Depositors had failed to comply with the relevant statutory scheme for bringing their claims. It also denied the Uninsured Depositors’ motion to remand, finding that federal jurisdiction was proper over the entire dispute. Those two decisions have been appealed by the Uninsured Depositors. For the reasons set forth below, we AFFIRM the judgment of the district court.
 
Barany-Snyder v. Weiner (August 22, 2008)(Appeal from N.D. OH)
-  http://www.ca6.uscourts.gov/opinions.pdf/08a0314p-06.pdf
-  This case arises out of a state court debt collection action brought by defendants-appellants Keith D. Weiner, Keith D. Weiner & Associates Co., L.P.A., and Scott W. Paris (collectively, “defendants”) against plaintiff-appellant Michelle K. Barany-Snyder. Barany-Snyder alleges that defendants engaged in improper debt collection in violation of the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq., and seeks to represent a class of similarly situated individuals. Pursuant to Federal Rule of Civil Procedure 12(c), the district court granted judgment on the pleadings in favor of defendants, and Barany- Snyder now appeals. Defendants, in turn, assert that they are entitled to immunity from suit, and they further argue that the statute of limitations bars at least part of Barany-Snyder’s FDCPA claims. For the following reasons, we affirm the judgment of the district court.
 
State Farm Bank FSB v. J. Reardon (August 22, 2008)(Appeal from S.D. OH)
-  http://www.ca6.uscourts.gov/opinions.pdf/08a0315p-06.pdf
-  State Farm Bank, a federal savings association and a wholly owned subsidiary of State Farm Mutual Automobile Insurance Co., offers mortgage products and banking services to individuals throughout the United States. State Farm Bank does not maintain any “brick and mortar” branch offices that are open to the public; rather, it solicits and markets its mortgage products and banking services through its existing network of independent and exclusive insurance agents who have been specially trained to serve as mortgage lending and banking agents. The State of Ohio believes that State Farm Bank’s exclusive agents must comply with the licensing and registration requirements set forth in the Ohio Mortgage Broker Act (“the Ohio Act”), Ohio Revised Code § 1322.01 et seq. State Farm Bank argues that federal law governing the operations of federal savings associations preempts the application of the Ohio Act to its exclusive agents. The Office of Thrift Supervision (“the OTS”), the federal agency charged with regulating federal savings associations, issued an opinion letter (“the OTS Opinion”) agreeing with State Farm Bank. Notwithstanding the OTS Opinion, the defendant-appellee, John B. Reardon, Superintendent of the Ohio Division of Financial Institutions (“the Superintendent”), declined to exempt State Farm Bank’s exclusive agents from compliance with the Ohio Act. State Farm Bank and one of its Ohio-based agents filed this action in the United States District Court for the Southern District of Ohio, seeking declaratory and injunctive relief. The district court held that federal law does not preempt the application of the Ohio Act to State Farm Bank’s exclusive agents. We disagree and REVERSE.
   

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

 

USA v. Mayberry AND
USA v. Peoples (August 21, 2008)(Appeal from W.D. MI)
-  http://www.ca6.uscourts.gov/opinions.pdf/08a0308p-06.pdf
-  Defendant James Peoples appeals his conviction as a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1), alleging that he was deprived of his Fifth Amendment rights when the prosecution introduced evidence demonstrating that he possessed firearms during multiple armed robberies, that insufficient evidence exists to support his conviction, and that he was denied his Sixth Amendment right to confront a witness. Defendant Shawn Mayberry appeals his 110-month sentence on similar charges, claiming that the district judge unconstitutionally made findings of fact at sentencing, and that his sentence is unreasonable. As none of these claims have merit, we AFFIRM both Defendants’ convictions and sentences.
 
Josephine Bowie v. Commissioner of Social Security (August 22, 2008)(Appeal from E.D. MI)
-  http://www.ca6.uscourts.gov/opinions.pdf/08a0311p-06.pdf
-  This Social Security disability appeal presents a single procedural issue regarding whether the agency adequately explained its decision. At least on the particular facts of this case, it was procedurally acceptable for the ALJ not to address in his opinion that Bowie was “borderline” between age groups under 20 C.F.R. § 404.1563(b). The district court therefore properly upheld the Commissioner’s denial of benefits.
 
In re: Scarlet Hotels, LLC v. (August 22, 2008)(Appeal from U.S. Bankruptcy Court - Nashville)
-  http://www.ca6.uscourts.gov/opinions.pdf/08b0013p-06.pdf
-  Scarlet Hotels, LLC (the “Debtor”) appeals the bankruptcy court’s order awarding attorneys’ fees and expenses to an oversecured creditor pursuant to § 506 of the Bankruptcy Code.
 

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