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Goto Online Report Homepage<</a< </td< </tr< <!--=3D=3D=3D=3D=3D=3D=3D=3D= =3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D= =3D=3D=3D=3D=3D=3D=3D=3D END TR SECTION 1 =3D=3D=3D=3D=3D=3D=3D=3D=3D=3D= =3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D--< <!--=3D=3D=3D= =3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D= =3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D BEGIN TR SECTION 2 =3D=3D=3D=3D=3D= =3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D--<= <tr< <td width=3DCurving GraphicHand on Mouse GraphicOctober 22, 2001Vol. = 74 # 43 Click to view Legis-Letter Click to view Classifieds Click to vie= w Breaking News CLE Courses Unsubscribe [IMAGE] [IMAGE] =09 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 ma= ndamus action against CLE commission to require it to apply 12 excess cre= dit hours to next reporting period and prohibition action to prevent comm= ission from disallowing the carryover. Since Gov. Bar R. X(3)(B)(2) entit= les attorney who completes more than the required CLE in a reporting peri= od to a maximum of 12 carryover credit hours, commission is not authorize= d 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 carryov= er, 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 retaine= r 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 Defenda= nt was convicted of drug offense and subsequently of trespass in a drug e= xclusion zone. Although ordinance is justified by a compelling state inte= rest in allowing public use and enjoyment within zones free from illegal = drug abuse, it infringes on the fundamental right of freedom of intrastat= e travel and violates the Due Process Clause of the Fourteenth Amendment.= Because exclusion of defendant from drug exclusion zone was imposed by t= he executive branch, it added a criminal penalty for his drug offense nei= ther imposed by a court nor authorized by state criminal statute, in viol= ation of Ohio Const., Art. XVIII, ?3. Also discussed: ordinance prohibiti= ng access only, not human relationships or associations; Supremacy Clause= . State v. Burnett 93 Ohio St.3d 419 Criminal Law-Habeas Corpus-Paro= le 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 i= n 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. B= ray v. Brigano 93 Ohio St.3d 458 Criminal Law-Habeas Corpus-Release-G= ood Time Credit Defendant was convicted of felonious assault and filed ha= beas corpus petition for release on grounds that his accumulated "good ti= me" credits under ORC ?2967.193 and former ORC ?2967.19 entitled him to r= elease. Court of appeals did not err in dismissing petition since statuto= ry provisions do not reduce the maximum term of his indeterminate sentenc= e and do not entitle him to release before serving the maximum. Hanes v.= Haviland 93 Ohio St.3d 465 Practice and Procedure-Final Order-Attorn= ey-Admission Pro Hac Vice Judgment of court of appeals reversed on author= ity of ORC ?2505.02 and Guccione v. Hustler Magazine, Inc. (1985), 17 Ohi= o St.3d 88. Klein v. Streicher 93 Ohio St.3d 446 Practice and Proced= ure-Judgment-Notice In a foreclosure action, trial court denied defendan= t's Civ. R. 60(B) and other pending motions, and defendant appealed. Writ= of prohibition is granted where court of appeals erred in denying plaint= iff's motion to dismiss appeal as untimely since bailiff mailed notice to= parties' last known address within three days of entry of judgment, whic= h 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 gen= eral hospital association, writ is denied. Association was not subject to= Public Records Act because it was not a "public office" or a "public in= stitution" under ORC ?149.011(A). The municipalities had no control over = hospital's operation and no board member acted in representational capaci= ty for them, and provision of hospital care is not a uniquely governmenta= l service. The initial issuance of bonds by municipalities for hospital's= construction, without provision of funds for other equipment or operatio= ns, coupled with lease of building at arguably less than fair market rate= , does not constitute support by public taxation. State ex rel. Stys v. P= arma Community Gen. Hosp. 93 Ohio St.3d 438 Schools-Administrator-Ter= mination-Notice-Mandamus-Appeal-Moot Relator did not receive written notic= e from school board of termination of his employment as an administrative= officer as required by ORC ?3319.02(C), and court of appeals granted man= damus to compel school board to issue an "other administrator's" employme= nt contract and to pay him back pay and benefits, but denied attorney fee= s. 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. Clevela= nd City School Dist. Bd. of Edn. 93 Ohio St.3d 449 Workers' Compensat= ion-Average Weekly Wage Claim for industrial injury in 1976 was allowed, = and in 1996 claimant moved Industrial Commission to reset her allowed ave= rage weekly wage, which was denied. Court of appeals did not err in grant= ing writ of mandamus limited to consideration of readjustment for two yea= rs preceding the motion. State ex rel. Lunsford v. Indus. Comm. 93 Ohio = St.3d 448 Court of Appeals Opinions Children-Custody-Modification-Bes= t Interests-Alcoholism After custody of minor children and residential pa= rent status were granted father in divorce action, trial court did not er= r 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 a= dmitted alcoholic, was involved in several drinking incidents, one in fro= nt 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 Wit= hdrawal-Right to Counsel Defendant, without counsel, entered no contest p= lea to driving without a license and was sentenced to a jail term and fin= e, 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 th= at right to counsel was properly waived under criminal rules where there = was only mere written waiver of right to counsel. Also discussed: stateme= nt 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-Sobri= ety 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 o= n 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 offi= cer's view was not optimal. Where defendant committed no traffic violatio= n, police had insufficient cause to stop him based solely on his turning = around prior to entering the checkpoint. State v. Bryson (8th Dist.-20= 01) 142 Ohio App.3d 397 Criminal Law-Sexual Classification-Sexual Pred= ator-Evidence-Recidivism In 1985, defendant was convicted of felonious as= sault after being indicted for kidnapping, rape, robbery and felonious as= sault, each with an aggravated felony specification of an earlier attempt= ed rape conviction. Trial court did not err in classifying defendant a se= xual 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 grat= ifying his sexual needs and desires. Victim's statement and testimony, de= fendant's lengthy criminal record and prior convictions and arrests, age = of victim and violent nature of crime were probative of defendant's likel= ihood of recidivism. State v. Childs (8th Dist.-2001) 142 Ohio App.3d 389= Dentists-License Examination-Standing-Public Action Exception Trial c= ourt did not err in dismissing for lack of standing dentists' mandamus ac= tion against state dental board to compel promulgation of administrative = regulation designating acceptable dental licensure examinations. Duty sou= ght to be compelled is not for the benefit of the public sufficient to su= pply 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 applicatio= n did not depend on alleged invalidity of the rule adopted, OAC ?4715-5-0= 3, or the rule he sought to compel by mandamus. Bowers v. Ohio State Dent= al Bd. (10th Dist.-2001) 142 Ohio App.3d 376 Negligence-Medical Malpra= ctice-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 cour= t did not err in not instructing jury on breach of fiduciary duty and bai= lment since no fiduciary duty claim is necessary under medical malpractic= e and patient is not bailed property; in giving an interrogatory that all= owed jury to find negligence without determining the cause because this d= id 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. Vinc= ent Med. Ctr. (6th Dist.-2001) 142 Ohio App.3d 347 Negligence-Slip and= Fall-Hazardous Condition-Expert Testimony In negligence action for slip a= nd 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 afte= r 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 prej= udicial. Eller v. Wendy's Internatl. (10th Dist.-2000) 142 Ohio App.3d 32= 1 Nuisance-Municipal Corporations-Park Roadway-Recreational Use Immunit= y In nuisance action against city by bicyclist injured in fall after str= iking 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 Di= st.-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 Admi= nistration and filed and then voluntarily dismissed federal court False C= laims Act complaint and separate state court Whistleblower Act action, an= d then commenced a third similar action in state court. Trial court did n= ot err in dismissing third action with prejudice under Civ. R. 41(A)(1) do= uble 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 ba= sed on different theories of recovery. Also discussed: dismissal of Unite= d States in action that included private claims; statutory ORC ?4113.52 a= nd public policy Whistleblower claims. Forshey v. Airborne Freight Corp. = (12th Dist.-2001) 142 Ohio App.3d 404 Torts-Defamation-Public Figure-L= imited-Purpose-Actual Malice In defamation action by businessman against = magazine publisher and author referring, inter alia, to his federal indic= tment, 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-purpo= se public figure to whom the actual malice element of proof applies becau= se over 100 newspaper articles concerning him and his business had been p= ublished over a 14-year span. Also discussed: federal indictment fell wit= hin fair-report privilege. Kassouf v. Cleveland Magazine City Magazines (= 11th Dist.-2001) 142 Ohio App.3d 413 Torts-Evidence-Spoliation-Bailmen= t Employee was injured while driving vehicle owned by his employer and b= rought action for spoliation of evidence and on bailment theory against i= nsurer based on its sale of vehicle for salvage. Trial court did not err i= n granting summary judgment to insurer since sale was not "willful" dest= ruction 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. F= ord Motor Co. (10th Dist.-2001) 142 Ohio App.3d 384 Misc Court Pract= ice and Procedure-Venue-Contracts-Place of Breach In action by employee fo= r breach of commissions contract against employer, evidence showed that d= ecision not to pay was made in county of employer's principal place of bu= siness, and employer's motion is granted to transfer venue to that county= from county in which employer merely maintained sales office. Also disc= ussed: county of breach controls for venue purposes, not county of contra= ct's formation. Budzik v. Reynold's Mach., Inc. (Medina Cty. Ct. Com. Pls.= -1999) 113 Ohio Misc.2d 17 [IMAGE] =09 rounding corner graphic Opinion summaries prepared by Anadem, Inc., Columb= us, Ohio. 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