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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 29, 2001Vol. = 74 # 44 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 Click to Visit Cl= ick to Visit Click to Visit Click to Visit Supreme Court Jud= ges-Discipline-Impartiality-Impropriety-Public Reprimand After judge spoke= with newly arrested person and drove her home from police station withou= t discussing her case, he was the judge in her case and accepted her plea= agreement. Judge is publicly reprimanded for failing to promote public c= onfidence in judiciary, failing to recuse himself and creating an impress= ion of impropriety. Disciplinary Counsel v. Medley 93 Ohio St.3d 474 = Torts-Dram Shop Act-Wrongful Death-Underage Buyer-Knowingly In Dram Sho= p Act action for wrongful death arising out of vehicular accident alleged= ly caused by sale of beer to minor without proof of age, trial court's gr= ant of summary judgment for defendants was erroneous. ORC ?4399.18(A)(3) = imposes liability on a liquor licensee for negligent off-premises actions= of intoxicated person if a preponderance of the evidence shows licensee = or its employee knowingly sold intoxicating beverage to underage person, = a violation of criminal prohibition in ORC ?4301.69. Read in pari materia= with ORC ?4301.69, the word "knowingly," as applied in ORC ?4399.18(A)(3= ), to the sale of an intoxicating beverage to an underage person, encompa= sses the standard "know or have reason to know" and a licensee may not av= oid liability by simply failing to ask buyer for identification or proof = of legal age or failing to establish other safeguards. Lesnau v. Andate E= nterprises, Inc. 93 Ohio St.3d 467 Court of Appeals Opinions Civil = Rights-Firearms-Brady Act-Background Check Fees Nonprofit firearm associat= ion, licensed firearms dealer, and Ohio residents and handgun purchasers = brought 42 USC ?1983 action against Ohio Attorney General (OAG) for refun= d of fees paid for firearms purchasers' background checks under the Brady= Handgun Violence Prevention Act, 18 USC ?921, et seq., and a subsequent = agreement between OAG and U.S. attorney general, on the basis that the fe= e was unauthorized and unconstitutional. Trial court did not err in grant= ing summary judgment to OAG. As to the 42 USC ?1983 claims, that plaintif= fs could bring and were not barred by the applicable statute of limitatio= ns, ORC ?2305.10(A), plaintiffs' rights were not infringed by the OAG, no= r were plaintiffs-purchasers affected by conduct taken under color of sta= te law. OAG and state agency responsible for collecting the Brady fee act= ed within their statutory powers. Second Amendment to U.S. Constitution, = effective only against the federal government, is not incorporated into = the 14th Amendment to the U.S. Constitution and does not restrict the pow= er of states to regulate the right to keep and bear arms for purposes of a= claim under 42 USC ?1983. ORC Chapter 2723 permits an adequate means to = contest a tax or assessment and was available to challenge the legality o= f Brady fee before or after its imposition, such that the fee's impositi= on did not violate procedural due process. Also discussed: where OAG is s= ued in official capacity, 42 USC ?1983 may not be the basis for such a su= it; dealers as private entities did not function as state actors; OAG ent= itled to qualified immunity; plaintiffs failed to timely bring their pers= onal-capacity action against OAG for collection of Brady fees under the s= ole remedy, ORC ?2723.01. Peoples Rights Org. v. Montgomery (12th Dist.-20= 01) 142 Ohio App.3d 443 Criminal Law-Expungement-Retroactivity Trial = court did not err in denying expungement of first-degree misdemeanor dome= stic violence conviction where motion was filed before effective date of = new ORC ?2953.36(C) prohibiting expungement, and denial was entered after= effective date. Expungement is a privilege conferred at discretion of tr= ial court, not a right, and rule prohibiting retroactive application of l= aw against a vested right, Ohio Const., Art. II, ?28, was not violated. = Euclid v. Sattler (8th Dist.-2001) 142 Ohio App.3d 538 Criminal Law-Ju= veniles-Delinquency-Murder-Purpose-Involuntary Manslaughter Trial court er= red in adjudicating 13-year-old defendant delinquent for murder with gun = specification and carrying a concealed weapon, arising out of 10-year-old= neighbor's being shot while defendant was engaging in horseplay with fat= her's gun. Adjudication was not supported by sufficient evidence of purpo= sefulness where there was a lack of animus or motive, gun was in awkward = position when it discharged, safety had been on earlier in day when defen= dant pulled trigger without effect, and defendant was surprised and disma= yed when gun discharged into victim. Defendant's carrying gun for avowed = purpose of scaring neighbor girls constitutes aggravated menacing under O= RC ?2903.21, which supports finding of delinquency involuntary manslaught= er, and case is directly remanded for entry of judgment and sentencing on= this lesser included offense. Also discussed: despite low IQ, defendant = understood nature of charges against him and ably assisted counsel who wa= s not ineffective in failing to request a competence hearing. In re York= (8th Dist.-2001) 142 Ohio App.3d 524 Employer and Employee-Terminatio= n-Arbitration-Appeal After township terminated firefighters and refused t= o arbitrate grievances, it sought declaratory judgment that appeal from t= ermination under ORC ?505.38 was sole remedy under collective bargaining = agreement (CBA). Trial court denied injunctive relief and granted judgment= on pleadings, holding that, under CBA, arbitrator had jurisdiction to d= etermine arbitrability. Trial court did not err because where CBA expressl= y reserves power to arbitrator to determine arbitrability, trial court s= hould not make an independent determination. It is also for arbitrator to= determine whether grievances assert rights under the CBA that may be mai= ntained independent of a court action or whether the grievances amount to= an appeal of termination under ORC ?505.38, which would preclude arbitra= tion. Union Twp., Clermont Cty. v. Union Twp. Professional Firefighters' L= ocal 3412 (12th Dist.-2001) 142 Ohio App.3d 542 Housing-Mandatory Insp= ections-Search Warrant-Probable Cause-Ripeness After landlord was convicte= d of two misdemeanor city housing code violations and administratively o= rdered, pursuant to ordinance, to have semiannual searches of all properti= es, including even those not involved in the violations, trial court did = not abuse its discretion in affirming decision upholding constitutionalit= y. Where city ordinance does not mandate that inspections be performed wi= thout a warrant, but either with owner's consent or with a warrant, it is= constitutional. Where city performed the inspections but has not had the= occasion to obtain a search warrant, landlord's contention that convicti= on of a housing code violation is insufficient probable cause to issue a = warrant for another property is not ripe for adjudication. Russel v. Akr= on Dept. of Public Health, Hous. Appeals Dept. (9th Dist.-2001) 142 Ohio A= pp.3d 430 Landlord and Tenant-Courts-Municipal-Jurisdiction-Counterclai= m Amount-Appeal In a forcible entry and detainer action in municipal cour= t for possession and damages with tenant counterclaiming for breach of qu= iet enjoyment, harassment, abuse of process and injunctive relief, magist= rate denied tenant's motion to certify case to common pleas court due to = counterclaim in excess of jurisdictional amount. Trial proceeded solely o= n landlord's claim for possession with the magistrate granting judgment f= or possession to the landlord, which the municipal court adopted. Where m= unicipal court's ruling on tenant's motion to certify was pending, any cl= aim of error in that ruling must await final judgment, and municipal cour= t had jurisdiction to enter judgment for possession, ORC ?1901.18(A)(8). = ORC ?1901.22 and Civ. R. 13(J) are not self-executing, and municipal cour= t is not required to certify cases based solely on the monetary amount de= manded in a counterclaim. Also discussed: reconsideration of court of app= eals previous dismissal granted after trial court signed journal entry ap= proving magistrate's decision granting writ of restitution to landlord, A= pp. R. 26. Colombo Ent., Inc. v. Fegan (8th Dist.-2001) 142 Ohio App.3d 5= 51 Political Subdivisions-Tort Liability-Housing-Immunity-Party In own= er's action for damages against county building and zoning department (BZ= D) and its administrator arising out of denial of building permit to comp= lete residential construction and township's demolition of structure, tri= al court did not err in granting summary judgment to BZD on basis, inter = alia, of immunity and failure to sue township. BZD is an instrumentality = that carries out county functions that entitles it to political subdivisio= n tort liability immunity under ORC Chapter 2744, where it was engaged in= a governmental function, ORC ?2744.01(C)(2)(p), and there is no applica= ble exception to immunity. Where township initiated administrative action= to demolish structure, it was proper party-defendant, not BZD, which mer= ely granted administrative demolition order after township order was fina= l. Brewer v. Butler Cty. Bldg. & Zoning Dept. (12th Dist.-2001) 142 Ohio = App.3d 567 Practice and Procedure-Class Action-Certification Borrowers= brought action against lender arising out of alleged fraudulent misrepre= sentation of true cost of postponing one monthly payment by neglecting to= disclose that extension fee was in addition to the compound interest pay= able over loan term. Trial court did not err in certifying class after or= al argument based on grounds set forth in motion for certification and pl= aintiffs' supplemental memorandum rebutting lender's allegations of class= 's deficiency. Also discussed: trial court was not required to make separ= ate findings for each element of class certification, along with supporti= ng reasons. Begala v. PNC Bank, Ohio, N.A. (1st Dist.-2001) 142 Ohio App.= 3d 556 Products Liability-Defect-Proximate Cause Plaintiff-minor's ha= nd was partially amputated by meat grinder used in father's business, and= jury returned verdict for manufacturer on products liability claim and f= or maintenance company on negligence claim. Competent, credible evidence = supported jury verdict that grinder was not defective under consumer expe= ctation or risk/benefit tests where expert testified that product's safet= y devices and warnings sufficiently warned consumer of the danger; that t= he product was not more dangerous than an ordinary consumer would expect;= and that product conformed to all applicable engineering and manufactur= ing standards and was safe as designed. Verdict was not against the manif= est weight of the evidence where jury could have found that sole proximat= e cause of injury was plaintiffs' failure to unplug grinder before reasse= mbling it and improper removal of hopper top, contrary to manufacturer's = warnings. Bleh v. Biro Mfg. Co. (1st Dist.-2001) 142 Ohio App.3d 434 = Torts-Attorneys-Legal Malpractice-Release-Consideration-Formation In actio= n against attorneys who admitted malpractice in failing to timely file pe= rsonal injury claim arising out of auto accident, trial court erred in gr= anting summary judgment to attorneys based on release that recited as sol= e consideration only the sum paid by tortfeasor's insurer in settlement o= f client's emotional distress claim. There was also genuine fact issue of= meeting of parties' minds on settlement and whether attorneys' waiver of= fees and payment of client's medical expenses was fair consideration. B= arnes v. Ricotta (8th Dist.-2001) 142 Ohio App.3d 560 Misc Court No Cas= es this week. [IMAGE] =09 rounding corner graphic Opinion summaries prepared by Anadem, Inc., Columb= us, Ohio. [IMAGE] =09 [IMAGE] [IMAGE] Ohio unreported appellate opinions Ohio Attorney Gener= al opinions U.S. Supreme Court opinions U.S. 6th Circuit opinions Ohio ethi= cs opinions Ohio Revised Code Click here to visit Casemaker! [IMAGE= ] Docket Announcements Rules Announcements Calendar Click here to r= ead more! [IMAGE] =09 [IMAGE] [IMAGE] [IMAGE] [IMAGE] New OSBA awards to honor contributio= ns in legal education Recognizing a high level of interaction between the = academic community and the practicing bar, the Ohio State Bar Association L= egal Education Committee has established two new legal education awards. Cl= ick to read more! Address issues in your practice area: Join your OSBA sec= tion board of governors Anyone interested in serving on the board of one o= f the OSBA's sections? Read further to find out more about this great oppo= rtunity. Click to read more! Civil rights attorney Morris Dees to speak in= Columbus Famed civil rights attorney will be keynote speaker at the Ohio C= enter for Law-Related Education's Annual Law and Citizenship Conference. Cl= ick to read more! More Association News... [IMAGE] =09 [IMAGE] OSBA Logo - Justice is Hard Work Editor: Kathleen Maloney Technolo= gy Director: Fred Engel IT Engineer: Shane Zatezalo Membership, Public and= Media Relations, & Publications Committee: William J. Davis, East Liverp= ool, chair Colleen E. Cook, Marietta Louis A. DiFabio, Geneva Michael H. Me= aran, Portsmouth Kraig E. Noble, St. Marys Heather G. Sowald, Columbus [IM= AGE] =09 [IMAGE] To unsubscribe from this newsletter click here . To subscribe to = the text-only version click here . For the online issue archives click here= . To utilize the links to the caselaw in the OSBA Report Online you will n= eed a version 5.x or higher web browser. [IMAGE] =09 [IMAGE] Copyright ? 1997-2001 Ohio State Bar Association. All rights rese= rved. To submit comments or suggestions, send to OSBAreport@ohiobar.org = [IMAGE] [IMAGE] [IMAGE] [IMAGE] =09
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