Goto Online Report Homepage></a> </td> </tr> <!--========================================= END  TR SECTION 1 =============================--> <!--========================================= BEGIN TR SECTION 2 =============================--> <tr> <td width=Curving GraphicHand on Mouse GraphicOctober 29, 2001Vol. 74 # 44 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    Click to Visit    Click to Visit    Click to Visit    Click to Visit     Supreme Court      Judges-Discipline-Impartiality-Impropriety-Public Reprimand  After judge spoke with newly arrested  person and drove her home from police  station without discussing her case, he  was the judge in her case and accepted  her plea agreement. Judge is publicly  reprimanded for failing to promote  public confidence in judiciary, failing  to recuse himself and creating an  impression of impropriety.    Disciplinary Counsel v. Medley   93 Ohio St.3d 474     Torts-Dram Shop Act-Wrongful Death-Underage Buyer-Knowingly  In Dram Shop Act action for wrongful  death arising out of vehicular accident  allegedly caused by sale of beer to  minor without proof of age, trial  court's grant 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, encompasses the standard "know  or have reason to know" and a licensee  may not avoid liability by simply  failing to ask buyer for identification  or proof of legal age or failing to  establish other safeguards.  Lesnau v. Andate Enterprises, Inc.   93 Ohio St.3d 467   Court of Appeals Opinions     Civil Rights-Firearms-Brady Act-Background Check Fees  Nonprofit firearm association, licensed  firearms dealer, and Ohio residents and  handgun purchasers brought 42 USC ?1983  action against Ohio Attorney General  (OAG) for refund 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 fee was unauthorized and  unconstitutional. Trial court did not  err in granting summary judgment to  OAG. As to the 42 USC ?1983  claims, that plaintiffs could bring and  were not barred by the applicable  statute of limitations, ORC  ?2305.10(A), plaintiffs' rights were  not infringed by the OAG, nor were  plaintiffs-purchasers affected by  conduct taken under color of state law.  OAG and state agency responsible for  collecting the Brady fee acted 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  power 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 of  Brady fee before or after its  imposition, such that the fee's  imposition did not violate procedural  due process. Also discussed: where OAG  is sued in official capacity, 42 USC  ?1983 may not be the basis for such a  suit; dealers as private entities did  not function as state actors; OAG  entitled to qualified immunity;  plaintiffs failed to timely bring their  personal-capacity action against OAG  for collection of Brady fees under the  sole remedy, ORC ?2723.01.  Peoples Rights Org. v. Montgomery (12th Dist.-2001)  142 Ohio App.3d 443     Criminal Law-Expungement-Retroactivity  Trial court did not err in denying  expungement of first-degree misdemeanor  domestic 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  trial court, not a right, and rule  prohibiting retroactive application of  law 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-Juveniles-Delinquency-Murder-Purpose-Involuntary Manslaughter  Trial court erred 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 father's gun.  Adjudication was not supported by  sufficient evidence of purposefulness  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 defendant pulled  trigger without effect, and defendant  was surprised and dismayed when gun  discharged into victim. Defendant's  carrying gun for avowed purpose of  scaring neighbor girls constitutes  aggravated menacing under ORC ?2903.21,  which supports finding of delinquency  involuntary manslaughter, 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 was not ineffective in  failing to request a competence  hearing.  In re York (8th Dist.-2001)  142 Ohio App.3d 524     Employer and Employee-Termination-Arbitration-Appeal  After township terminated firefighters  and refused to arbitrate grievances, it  sought declaratory judgment that appeal  from termination 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  determine arbitrability. Trial court  did not err because where CBA expressly  reserves power to arbitrator to  determine arbitrability, trial court  should not make an independent  determination. It is also for  arbitrator to determine whether  grievances assert rights under the CBA  that may be maintained independent of a  court action or whether the grievances  amount to an appeal of termination  under ORC ?505.38, which would preclude  arbitration.  Union Twp., Clermont Cty. v. Union Twp. Professional Firefighters' Local 3412 (12th Dist.-2001)  142 Ohio App.3d 542     Housing-Mandatory Inspections-Search Warrant-Probable Cause-Ripeness  After landlord was convicted of two  misdemeanor city housing code  violations and administratively  ordered, pursuant to ordinance, to have  semiannual searches of all properties,  including even those not involved in  the violations, trial court did not  abuse its discretion in affirming  decision upholding constitutionality.  Where city ordinance does not mandate  that inspections be performed without 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 conviction  of a housing code violation is  insufficient probable cause to issue a  warrant for another property is not  ripe for adjudication.  Russel v. Akron Dept. of Public Health, Hous. Appeals Dept. (9th Dist.-2001)  142 Ohio App.3d 430     Landlord and Tenant-Courts-Municipal-Jurisdiction-Counterclaim Amount-Appeal  In a forcible entry and detainer action  in municipal court for possession and  damages with tenant counterclaiming for  breach of quiet enjoyment, harassment,  abuse of process and injunctive relief,  magistrate denied tenant's motion to  certify case to common pleas court due  to counterclaim in excess of  jurisdictional amount. Trial proceeded  solely on landlord's claim for  possession with the magistrate granting  judgment for possession to the  landlord, which the municipal court  adopted. Where municipal court's ruling  on tenant's motion to certify was  pending, any claim of error in that  ruling must await final judgment, and  municipal court 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 court is not required to  certify cases based solely on the  monetary amount demanded in a  counterclaim. Also discussed:  reconsideration of court of appeals  previous dismissal granted after trial  court signed journal entry approving  magistrate's decision granting writ of  restitution to landlord, App. R. 26.  Colombo Ent., Inc. v. Fegan (8th Dist.-2001)  142 Ohio App.3d 551     Political Subdivisions-Tort Liability-Housing-Immunity-Party  In owner's action for damages against  county building and zoning department  (BZD) and its administrator arising out  of denial of building permit to  complete residential construction and  township's demolition of structure,  trial 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 subdivision  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  applicable exception to immunity. Where  township initiated administrative  action to demolish structure, it was  proper party-defendant, not BZD, which  merely granted administrative  demolition order after township order  was final.  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  misrepresentation of true cost of  postponing one monthly payment by  neglecting to disclose that extension  fee was in addition to the compound  interest payable over loan term. Trial  court did not err in certifying class  after oral argument based on grounds  set forth in motion for certification  and plaintiffs' supplemental memorandum  rebutting lender's allegations of  class's deficiency. Also discussed:  trial court was not required to make  separate findings for each element of  class certification, along with  supporting reasons.  Begala v. PNC Bank, Ohio, N.A. (1st Dist.-2001)  142 Ohio App.3d 556     Products Liability-Defect-Proximate Cause   Plaintiff-minor's hand was partially  amputated by meat grinder used in  father's business, and jury returned  verdict for manufacturer on products  liability claim and for maintenance  company on negligence claim. Competent,  credible evidence supported jury  verdict that grinder was not defective  under consumer expectation or  risk/benefit tests where expert  testified that product's safety devices  and warnings sufficiently warned  consumer of the danger; that the  product was not more dangerous than an  ordinary consumer would expect; and  that product conformed to all  applicable engineering and  manufacturing standards and was safe as  designed. Verdict was not against the  manifest weight of the evidence where  jury could have found that sole  proximate cause of injury was  plaintiffs' failure to unplug grinder  before reassembling 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 action against attorneys who  admitted malpractice in failing to  timely file personal injury claim  arising out of auto accident, trial  court erred in granting summary  judgment to attorneys based on  release that recited as sole  consideration only the sum paid by  tortfeasor's insurer in settlement of  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.  Barnes v. Ricotta (8th Dist.-2001)  142 Ohio App.3d 560   Misc Court  No Cases this week.  [IMAGE] 	
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