From: osbareport@ohiobar.org
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Date: 2001-10-19 22:00:29+00:00
Subject: OSBA Report Online HTML Version Volume 74 Issue 43


Goto Online Report Homepage></a> </td> </tr> <!--========================================= END  TR SECTION 1 =============================--> <!--========================================= BEGIN TR SECTION 2 =============================--> <tr> <td width=Curving GraphicHand on Mouse GraphicOctober 22, 2001Vol. 74 # 43 Click to view Legis-Letter  Click to view Classifieds  Click to view Breaking News  CLE Courses  Unsubscribe   [IMAGE] [IMAGE] 	
 Click to Visit    Click to Visit    Click to Visit     Supreme Court      Attorneys-Continuing Legal Education-Carryover Credit  Attorney with 40.75 continuing legal  education (CLE) hours during reporting  period brought mandamus action against  CLE commission to require it to apply  12 excess credit hours to next  reporting period and prohibition action  to prevent commission from disallowing  the carryover. Since Gov. Bar R.  X(3)(B)(2) entitles attorney who  completes more than the required CLE in  a reporting period to a maximum of 12  carryover credit hours, commission is  not authorized by Gov. Bar R. X or its  own regulations to deny such carryover  because of attorney's failure to timely  file report. Because of nature of  hearing, commission did not exercise  quasi-judicial authority in denying  carryover, and prohibition is denied.  State ex rel. Potts v. Comm. on Continuing Legal Edn.   93 Ohio St.3d 452     Attorneys-Discipline-Multiple Violations-Suspension  Attorney is indefinitely suspended  where she accepted retainer but failed  to act on domestic relations matter,  delayed repayment, and failed to  cooperate in investigation.  Cleveland Bar Assn. v. Demore-Ford   93 Ohio St.3d 417     Criminal Law-Association-Intrastate Travel  Defendant was convicted of drug offense  and subsequently of trespass in a drug  exclusion zone. Although ordinance is  justified by a compelling state  interest in allowing public use and  enjoyment within zones free from  illegal drug abuse, it infringes on the  fundamental right of freedom of  intrastate travel and violates the Due  Process Clause of the Fourteenth  Amendment. Because exclusion of  defendant from drug exclusion zone was  imposed by the executive branch, it  added a criminal penalty for his drug  offense neither imposed by a court nor  authorized by state criminal statute,  in violation of Ohio Const., Art.  XVIII, ?3. Also discussed: ordinance  prohibiting access only, not human  relationships or associations;  Supremacy Clause.  State v. Burnett   93 Ohio St.3d 419     Criminal Law-Habeas Corpus-Parole Hearing-Guidelines-Due Process  Defendant was sentenced for involuntary  manslaughter and aggravated burglary  and was denied parole, with his next  hearing scheduled to be held in 10  years. Court of appeals did not err in  dismissing petition for habeas corpus.  Adult parole authority's alleged  failure to follow its guidelines does  not entitle defendant to release; he  has no due process right to have  alleged errors expunged from parole  determination records; his parole was  never revoked so as to trigger due  process hearing rights; and his  petition was defective because he did  not attach all pertinent commitment  papers, ORC ?2725.04(D).  State ex rel. Bray v. Brigano   93 Ohio St.3d 458     Criminal Law-Habeas Corpus-Release-Good Time Credit  Defendant was convicted of felonious  assault and filed habeas corpus  petition for release on grounds that  his accumulated "good time" credits  under ORC ?2967.193 and former ORC  ?2967.19 entitled him to release. Court  of appeals did not err in dismissing  petition since statutory provisions do  not reduce the maximum term of his  indeterminate sentence and do not  entitle him to release before serving  the maximum.  Hanes v. Haviland   93 Ohio St.3d 465     Practice and Procedure-Final Order-Attorney-Admission Pro Hac Vice  Judgment of court of appeals reversed  on authority of ORC ?2505.02 and  Guccione v. Hustler Magazine,  Inc. (1985), 17 Ohio St.3d 88.  Klein v. Streicher   93 Ohio St.3d 446     Practice and Procedure-Judgment-Notice   In a foreclosure action, trial court  denied defendant's Civ. R. 60(B) and  other pending motions, and defendant  appealed. Writ of prohibition is  granted where court of appeals erred in  denying plaintiff's motion to dismiss  appeal as untimely since bailiff mailed  notice to parties' last known address  within three days of entry of judgment,  which complied with Civ. R. 58(B), and  appeal should have been filed within 30  days, App.R. 4(A).  State ex rel. Pheils v. Pietrykowski   93 Ohio St.3d 460     Public Records-Community General Hospital Association-ORC ?149.011(A)  In original mandamus action by  taxpayers and residents under ORC  ?149.43 to inspect, inter  alia, minutes of board of trustees  of community general hospital  association, writ is denied.  Association was not subject to Public  Records Act because it was not a  "public office" or a "public  institution" under ORC ?149.011(A). The  municipalities had no control over  hospital's operation and no board  member acted in representational  capacity for them, and provision of  hospital care is not a uniquely  governmental service. The initial  issuance of bonds by municipalities for  hospital's construction, without  provision of funds for other equipment  or operations, coupled with lease of  building at arguably less than fair  market rate, does not constitute  support by public taxation.  State ex rel. Stys v. Parma Community Gen. Hosp.   93 Ohio St.3d 438     Schools-Administrator-Termination-Notice-Mandamus-Appeal-Moot  Relator did not receive written notice  from school board of termination of his  employment as an administrative officer  as required by ORC ?3319.02(C), and  court of appeals granted mandamus to  compel school board to issue an "other  administrator's" employment contract  and to pay him back pay and benefits,  but denied attorney fees. Since board  awarded relator the extraordinary  relief ordered by court of appeals,  board's appeal is dismissed as moot.  Also discussed: attorney fees as  damages under ORC ?2731.11.  State ex rel. Chapnick v. E. Cleveland City School Dist. Bd. of Edn.   93 Ohio St.3d 449     Workers' Compensation-Average Weekly Wage  Claim for industrial injury in 1976 was  allowed, and in 1996 claimant moved  Industrial Commission to reset her  allowed average weekly wage, which was  denied. Court of appeals did not err in  granting writ of mandamus limited to  consideration of readjustment for two  years preceding the motion.  State ex rel. Lunsford v. Indus. Comm.   93 Ohio St.3d 448   Court of Appeals Opinions     Children-Custody-Modification-Best Interests-Alcoholism  After custody of minor children and  residential parent status were granted  father in divorce action, trial court  did not err in modifying custody to  mother who was moving out of Ohio and  granting visitation rights to father.  There was some competent evidence to  support trial court's determination  under ORC ?3109.04(F)(1), where father,  an admitted alcoholic, was involved in  several drinking incidents, one in  front of the children, he had not seen  an alcoholism counselor in six months,  and the children were tardy to or  absent from school many times.  Sallee v. Sallee (12th Dist.-2001)  142 Ohio App.3d 366     Criminal Law-Plea Withdrawal-Right to Counsel  Defendant, without counsel, entered no  contest plea to driving without a  license and was sentenced to a jail  term and fine, and he moved two days  later to withdraw his plea. Trial court  erred in denying motion because the  state failed to meet its burden in  proving that right to counsel was  properly waived under criminal rules  where there was only mere written  waiver of right to counsel. Also  discussed: statement of facts and  issues in absence of opposing brief.  State v. Caynor (7th Dist.-2001)  142 Ohio App.3d 424     Criminal Law-Search and Seizure-Sobriety Checkpoint  Defendant was indicted for possession  of crack cocaine and criminal tools  arising out of a stop and search after  he made a U-turn on approaching a  sobriety checkpoint. Trial court did  not err in granting motion to suppress  drugs and crack pipes where defendant  had not entered funnel of checkpoint  before executing legal U-turn into  driveway and officer's view was not  optimal. Where defendant committed no  traffic violation, police had  insufficient cause to stop him based  solely on his turning around prior to  entering the checkpoint.     State v. Bryson (8th Dist.-2001)  142 Ohio App.3d 397     Criminal Law-Sexual Classification-Sexual Predator-Evidence-Recidivism  In 1985, defendant was convicted of  felonious assault after being indicted  for kidnapping, rape, robbery and  felonious assault, each with an  aggravated felony specification of an  earlier attempted rape conviction.  Trial court did not err in classifying  defendant a sexual predator 15 years  after his felonious assault conviction.  Under ORC ?2950.01(E), court properly  received into evidence victim's  statement and testimony that  defendant's felonious assault was for  the purpose of gratifying his sexual  needs and desires. Victim's statement  and testimony, defendant's lengthy  criminal record and prior convictions  and arrests, age of victim and violent  nature of crime were probative of  defendant's likelihood of recidivism.  State v. Childs (8th Dist.-2001)  142 Ohio App.3d 389     Dentists-License Examination-Standing-Public Action Exception  Trial court did not err in dismissing  for lack of standing dentists' mandamus  action against state dental board to  compel promulgation of administrative  regulation designating acceptable  dental licensure examinations. Duty  sought to be compelled is not for the  benefit of the public sufficient to  supply standing under the public action  exception to general standing rules,  and dentist who was awarded judgment in  prior action remanding denial of  licensure to board did not have  standing because his license  application did not depend on alleged  invalidity of the rule adopted, OAC  ?4715-5-03, or the rule he sought to  compel by mandamus.  Bowers v. Ohio State Dental Bd. (10th Dist.-2001)  142 Ohio App.3d 376     Negligence-Medical Malpractice-Res Ipsa Loquitur-Jury Instructions-Jury Interrogatories  In medical malpractice action against  hospital, doctors and practice arising  out of patient's death after heart  surgery from complications involving  alleged puncture of trachea, jury  returned verdict for all defendants.  Trial court did not err in not  instructing jury on breach of fiduciary  duty and bailment since no fiduciary  duty claim is necessary under medical  malpractice and patient is not bailed  property; in giving an interrogatory  that allowed jury to find negligence  without determining the cause because  this did not nullify instruction on  res ipsa loquitur; and in  instructing jury on issue of res  ipsa loquitur where court  immediately corrected a slip of the  tongue, and plaintiff failed to object  at trial.  Martin v. St. Vincent Med. Ctr. (6th Dist.-2001)  142 Ohio App.3d 347     Negligence-Slip and Fall-Hazardous Condition-Expert Testimony  In negligence action for slip and fall  in restaurant, jury returned verdict  for restaurant. Trial court did not  abuse its discretion in denying  mistrial where plaintiff did not bear  her burden of proof that restaurant  created hazardous condition, and any  error by trial court in failing to  conduct evidentiary analysis after  defense counsel referred to plaintiff's  litigation history was harmless; in  excluding testimony of plaintiff's  expert regarding slipperiness of tile  floor where he did not visit scene or  perform tile experiments, and his  opinion was based on deductive  reasoning and the elimination of all  other causes of the slip. Also  discussed: trial court's comments not  prejudicial.  Eller v. Wendy's Internatl. (10th Dist.-2000)  142 Ohio App.3d 321     Nuisance-Municipal Corporations-Park Roadway-Recreational Use Immunity  In nuisance action against city by  bicyclist injured in fall after  striking traffic control bump on  roadway in city park, trial court erred  in granting summary judgment to city on  basis of recreational use immunity.  Roadway is available to general public  for travel by vehicles and bicycles for  recreational and nonrecreational use.  ORC ?1533.181, which affords  recreational use immunity only, is  inapplicable.  Vinar v. Bexley (10th Dist.-2001)  142 Ohio App.3d 341     Practice and Procedure-Notice Dismissals-Double Dismissal Rule-Civ. R. 41(A)(1)  Employee was discharged allegedly in  retaliation for disclosing safety  violations to Federal Aviation  Administration and filed and then  voluntarily dismissed federal court  False Claims Act complaint and separate  state court Whistleblower Act action,  and then commenced a third similar  action in state court. Trial court did  not err in dismissing third action with  prejudice under Civ. R. 41(A)(1) double  dismissal rule because the three  actions constituted the same claim  under Civ. R. 41(A)(1). The actions  arose out of employee's termination  following his report of safety  violations, even though the claims were  based on different theories of  recovery. Also discussed: dismissal of  United States in action that included  private claims; statutory ORC ?4113.52  and public policy Whistleblower  claims.  Forshey v. Airborne Freight Corp. (12th Dist.-2001)  142 Ohio App.3d 404     Torts-Defamation-Public Figure-Limited-Purpose-Actual Malice  In defamation action by businessman  against magazine publisher and author  referring, inter alia, to his  federal indictment, trial court did not  err in granting summary judgment to  defendants on grounds of plaintiff's  being a limited-purpose public figure  and lack of actual malice and  fair-report privilege. Plaintiff is a  limited-purpose public figure to whom  the actual malice element of proof  applies because over 100 newspaper  articles concerning him and his  business had been published over a  14-year span. Also discussed: federal  indictment fell within fair-report  privilege.  Kassouf v. Cleveland Magazine City Magazines (11th Dist.-2001)  142 Ohio App.3d 413     Torts-Evidence-Spoliation-Bailment  Employee was injured while driving  vehicle owned by his employer and  brought action for spoliation of  evidence and on bailment theory against  insurer based on its sale of vehicle  for salvage. Trial court did not err in  granting summary judgment to insurer  since sale was not "willful"  destruction of evidence where there was  dialogue between plaintiff's attorney  and insurer's representative concerning  the status of the vehicle. There was no  bailment where employee did not  transfer a possessory interest in the  vehicle to the insurer because insurer  had already purchased it from employer.  Also discussed: negligent spoliation of  evidence.    White v. Ford Motor Co. (10th Dist.-2001)  142 Ohio App.3d 384   Misc Court     Practice and Procedure-Venue-Contracts-Place of Breach  In action by employee for breach of  commissions contract against employer,  evidence showed that decision not to  pay was made in county of employer's  principal place of business, and  employer's motion is granted to  transfer venue to that county from  county in which employer merely  maintained sales office. Also  discussed: county of breach controls  for venue purposes, not county of  contract's formation.  Budzik v. Reynold's Mach., Inc. (Medina Cty. Ct. Com. Pls.-1999)  113 Ohio Misc.2d 17    [IMAGE] 	
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