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 <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
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