Sixth Circuit Cases

Sept. 16, 2011 COA Minutes -- Nos. 828-842 (15 decisions; 7 published)

Michael Stevens — 2011-09-17T17:54:36-04:00

Sept. 16, 2011 COA Minutes -- Nos. 828-842 (15 decisions; 7 published)

Click on the above link for the full text of minutes with link to full text of each decision.
Cick here for AOC page with current minutes and archived minutes links

PUBLISHED DECISIONS OF COA:

829. CRIMINAL PROCEDURE. FARETTA HEARING.
MARTIN (VITTORIO ORLANDO)
VS.
COMMONWEALTH OF KENTUCKY
OPINION AFFIRMING IN PART, REVERSING IN PART AND REMANDING
CLAYTON (PRESIDING JUDGE)
CAPERTON (CONCURS) AND TAYLOR (CONCURS IN PART, DISSENTS IN PART)
2010-CA-000322-MR
2010-CA-001905-MR
TO BE PUBLISHED
FAYETTE

CLAYTON, JUDGE: Vittorio Orlando Martin appeals from orders of the Fayette Circuit Court. First, he appeals from the January 28, 2010, judgment of the court, which found him guilty of burglary in the second degree. As a result of this judgment, Martin received a suspended sentence of eight years of imprisonment and was placed on probation for five years. As a result of this judgment, Martin claims that his rights were violated when the trial court failed to conduct a Faretta (Faretta v. California, 422 U.S. 806, 955 S. Ct. 2525, 45 L. Ed. 2d 562 (1975).) hearing, denied his motion to dismiss on double jeopardy grounds, and imposed court costs as a condition of his probation. Second, Martin appeals the trial court’s later revocation of his probation following his failure to successfully complete drug court. The two appeals were consolidated. For the reasons stated herein, we affirm in part, reverse in part, and remand for a new trial.

830. CRIMINAL PROCEDURE. MOTION TO WITHDRAW WAIVER OF JURY SENTENCING. PROVISION RE WAIVING RIGHT TO APPEAL.
SIMMS (KEVIN LAMONT)
VS.
COMMONWEALTH OF KENTUCKY
OPINION AFFIRMING
COMBS (PRESIDING JUDGE)
CAPERTON (CONCURS) AND THOMPSON (CONCURS)
2010-CA-000344-MR
TO BE PUBLISHED
JEFFERSON

COMBS, JUDGE: Kevin Simms, a/k/a Kevin Franklin, appeals an order of the Jefferson Circuit Court denying his motion to withdraw his waiver of jury sentencing. After reviewing the record and the law, we affirm.

We acknowledge that this was a close case that was very well briefed and argued by the appellant. The form could have (and perhaps should have) stated that the right to appeal is guaranteed by the Kentucky Constitution. We also note that the trial court asked if it should conduct a Boykin colloquy with Simms; it elected not to do so. The colloquy is “an affirmative showing, on the record, that a guilty plea is voluntary and intelligent” as required by Boykin v. Alabama, 395 U.S. 238, 241-42, 89 S.Ct. 1709, 1711, 23 L.Ed.2d 274 (1969)). Id. The Boykin colloquy addresses the defendant’s state of mind, whether he understands his options other than the guilty plea, if he is satisfied with the representation his counsel provided, and if the plea is his own choice. It would not have been a hardship and certainly would have been better practice for the court to conduct the colloquy in order to insure the voluntariness of Simms’s plea.

Simms does not offer any evidence that he did not tell the truth in his colloquy with the court. His trial counsel testified to the court that he felt that a jury would have imposed a much harsher punishment upon Simms, and he thought that the sentencing bargain was equitable. With that evidence before the trial court, we are not persuaded that it committed error when it denied Simms’s motion to withdraw his waiver of jury sentencing.

Therefore, we conclude that Simms was adequately informed when he agreed to the sentencing plea, and we hold the court did not err in denying his motion to withdraw his plea.

831. REAL PROPERTY. EASEMENTS. AVIGATION. DAMAGES (DELAY).
CAMPBELL (BRATSCHI D.), ET AL.
VS.
DRESCHER (WILLIAM B.), ET AL.
OPINION REVERSING AND REMANDING
KELLER (PRESIDING JUDGE)
THOMPSON (CONCURS) AND WINE (CONCURS)
2010-CA-000680-MR
2010-CA-000681-MR
2010-CA-000682-MR
TO BE PUBLISHED
CHRISTIAN

KELLER, JUDGE: Covenant Storage, Inc. (Covenant) appeals from the trial court's summary judgment finding that Bratschi D. Campbell (Bratschi), Bratschi C. Johnston (Johnston), and her husband, Crews Johnston, III (Crews) (collectively, the Campbells) were entitled to proceeds from an avigation easement over real property they sold to Covenant. The Campbells cross-appeal the court's denial of their motion for prejudgment interest and/or "delay damages." The Campbells also appeal from the trial court's summary judgment in their legal malpractice claim against William B. Drescher (Drescher) and his law firm, Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C. (Baker Donelson). For the following reasons, we reverse and remand.

832. CRIMINAL PROCEDURE. 11.42 MOTION.
BISHOP (CHARLES LEE)
VS.
COMMONWEALTH OF KENTUCKY
OPINION AFFIRMING
LAMBERT (PRESIDING JUDGE)
DIXON (CONCURS) AND VANMETER (CONCURS)
2010-CA-000706-MR
TO BE PUBLISHED
JEFFERSON

LAMBERT, JUDGE: This is a post-conviction proceeding in which Charles L. Bishop is appealing from the Jefferson Circuit Court’s denial of his motion for Kentucky Rules of Criminal Procedure (RCr) 11.42 relief. After carefully reviewing the record, we affirm the circuit court’s order.

STANDARD OF REVIEW OF POST CONVICTION PROCEEDINGS:

We shall briefly describe the standard of review in RCr 11.42 post- conviction actions. Generally, in order to establish a claim for ineffective assistance of counsel, a movant must meet the requirements of a two-prong test by proving that: 1) counsel’s performance was deficient and 2) the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); accord Gall v. Commonwealth, 702 S.W.2d 37 (Ky. 1985), cert. denied, 478 U.S. 1010, 106 S.Ct. 3311, 92 L.Ed.2d 724 (1986).
In Sparks v. Commonwealth, 721 S.W.2d 726 (Ky. App. 1986), this Court addressed the validity of guilty pleas in the context of post-conviction actions. Specifically addressing the two-part test used to challenge a guilty plea based upon ineffective assistance of counsel, the Sparks Court instructed:
A showing that counsel’s assistance was ineffective in enabling a defendant to intelligently weigh his legal alternatives in deciding to plead guilty has two components: (1) that counsel made errors so serious that counsel’s performance fell outside the wide range of professionally competent assistance; and (2) that the deficient performance so seriously affected the outcome of the plea process that, but for the errors of counsel, there is a reasonable probability that the defendant would not have pleaded guilty, but would have insisted on going to trial.

Sparks, 721 S.W.2d at 727-28. See also Bronk v. Commonwealth, 58 S.W.3d 482 (Ky. 2001). However, the law is clear that “[e]ntry of a voluntary, intelligent plea of guilty has long been held by Kentucky Courts to preclude a post-judgment challenge to the sufficiency of the evidence.” Taylor v. Commonwealth, 724 S.W.2d 223, 225 (Ky. App. 1986).

837. FAMILY LAW. DIVORCE. CHILD CUSTODY AND "RECONCILIATION COUNSELING"; JOINT CUSTODY.
B. (N.)
VS.
H. (C.)
OPINION AFFIRMING IN PART, VACATING IN PART, AND REMANDING
ACREE (PRESIDING JUDGE)
WINE (CONCURS) AND LAMBERT, SENIOR JUDGE (CONCURS AND FILES SEPARATE OPINION
2010-CA-002257-ME
TO BE PUBLISHED
FAYETTE

ACREE, JUDGE: N.B. (Mother) appeals the November 22, 2010 order of the Fayette Family Court addressing various issues regarding a minor child, M.H. (Daughter), born of Mother’s marriage to C.H. (Father). We find no error in the family court’s refusal to order Mother and Daughter to undergo additional reconciliation counseling, and we therefore affirm that portion of the order. The family court did err, however, in permitting Father to unilaterally decide, contrary to the order of joint custody and without the joint custodian’s agreement, to relocate Daughter to Texas without conducting a hearing to determine whether relocation was in Daughter’s best interests. We therefore vacate the portion of the order addressing those matters and remand the case for additional proceedings.
Facts and procedure

839. FAMILY LAW. PERSONAL JURISDICTION VS. SUBJECT MATTER JURISDICTION OVER MODIFYING CHILD SUPPORT ORDER.
ROBERTS (COURTNEY G.)
VS.
BEDARD (ERIC)
OPINION AFFIRMING
CLAYTON (PRESIDING JUDGE)
STUMBO (CONCURS) AND THOMPSON (CONCURS)
2011-CA-000212-ME
TO BE PUBLISHED
FAYETTE

CLAYTON, JUDGE: Courtney G. Roberts appeals the Fayette Family Court’s order dismissing her motion to modify a child support order, which was originally entered in Florida. The family court dismissed the motion holding that, although the court may have personal jurisdiction over Bedard, it did not have subject-matter jurisdiction over a proceeding to modify the order. For the following reasons, we affirm.

STANDARD OF REVIEW FOR FFCCSOA

Here, the primary contested issue involves jurisdiction. Since the
issue of jurisdiction is a matter of law, we will review it de novo. See Revenue Cabinet v. Hubbard, 37 S.W.3d 717, 719 (Ky. 2000). The Kentucky Supreme
-4-
Court addressed the issue of jurisdiction related to UIFSA in Nordike v. Nordike, 231 S.W.3d 733 (Ky. 2007). Therein, the Court described jurisdiction as follows: “[j]urisdiction, broadly defined, is the power of the court to decide an issue in controversy.” Id. at 737, citing Black’s Law Dictionary 867 (8th ed. 2004). The Court then went on to discuss three types of jurisdiction – personal, subject-matter, and jurisdiction over a particular case.
With regard to personal jurisdiction, the Court stated:
First, there is personal jurisdiction, or “the court’s authority to determine a claim affecting a specific person.” Milby, 952 S.W.2d [202 (Ky. 1997)] at 205. When the question is whether the court has the power to compel a person to appear before it and abide by its rulings, this is a question of personal jurisdiction. Given the mobile world we live in, personal jurisdiction often is difficult to obtain, which has led each state to the development of long-arm statutes that extend personal jurisdiction to nonresidents. KRS 407.5201 is such a statute.
Id. Next, the Court discussed subject-matter jurisdiction:
Often, discussions of jurisdiction concern subject- matter jurisdiction, or the court’s power to hear and rule on a particular type of controversy. . . . Subject matter jurisdiction is not for a court to “take,” “assume,” or “allow.” “ ‘[S]ubject-matter jurisdiction cannot be born of waiver, consent or estoppel,’ ” but it is absent “ ‘only where the court has not been given any power to do anything at all in such a case. . . .’ ” Duncan v. O'Nan, 451 S.W.2d 626, 631 (Ky. 1970) (quoting In Re Estate of Rougeron, 17 N.Y.2d 264, 271, 270 N.Y.S.2d 578, 217 N.E.2d 639, 643 (N.Y. 1966)). A court either has it or it doesn’t, though admittedly there are times when more than one court may have subject matter jurisdiction or it is difficult to determine which court does.
-5-
Id. at 737-38. Lastly, the Court addresses jurisdiction over a particular matter and says:
Finally there is jurisdiction over the particular case at issue, which refers to the authority and power of the court to decide a specific case, rather than the class of cases over which the court has subject-matter jurisdiction. Milby, 952 S.W.2d at 205. This kind of jurisdiction often turns solely on proof of certain compliance with statutory requirements and so-called jurisdictional facts, such as that an action was begun before a limitations period expired.
Id. Here, the disputed jurisdiction revolves around the first two types, that is, whether the family court had personal jurisdiction over Bedard and subject-matter jurisdiction over the motion to modify the Florida child support order. Adding to the complexity of the issue is the interrelationship of the UIFSA statutes and the FFCCSOA statutes.

842. WORKERS COMP. INJURIOUS HAZARD. EMPLOYER RESPONSIBLE FOR BENEFITS.
GREG'S CONSTRUCTION
VS.
KEETON (JERRY), ET AL.
OPINION AFFIRMING
MOORE (PRESIDING JUDGE)
DIXON (CONCURS) AND THOMPSON (CONCURS)
2011-CA-000761-WC
TO BE PUBLISHED
WORKERS' COMP

MOORE, JUDGE: Greg’s Construction appeals from an opinion, order and award of an Administrative Law Judge (ALJ), as affirmed by the Board of Workers’ Claims (“Board”), holding Greg’s Construction exclusively liable, per KRS1 342.7305(4), for paying benefits and medical expenses relating to Appellee Jerry Keeton’s claim of permanent partial hearing loss. Upon review, we affirm.

Keeton was only required to present substantial evidence demonstrating that he was exposed to hazardous levels of noise during his employment with Greg’s Construction. Keeton has done so. And, Greg’s Construction cites to nothing in the record that would rebut that Keeton was injuriously exposed to hazardous levels of noise in its workplace. As such, we find no error with respect to this portion of the ALJ’s decision.

In relevant part, KRS 342.7305(4) provides that “the employer with whom the employee was last injuriously exposed to hazardous noise shall be exclusively liable for benefits.” As noted above, substantial evidence supports the ALJ’s determination that Greg’s Construction was the employer with whom Keeton was last injuriously exposed to hazardous noise. Therefore, pursuant to the unambiguous language of the statute, Greg’s Construction is exclusively liable for Keeton’s benefits. See, e.g., Shelcha Coal Co., 834 S.W.2d at 696 (holding that identical language in KRS 342.316 is “clear and unequivocal” and precludes apportionment); see also McDowell v. Jackson Energy RECC, 84 S.W.3d 71, 77 (Ky. 2002) (“courts must presume that a legislature says in a statute what it means and means in a statute what it says . . . [and][w]hen the words of a statute are unambiguous, then, this first canon is also the last: ‘judicial inquiry is complete.’”) (quoting Connecticut Nat'l Bank v. Germain, 503 U.S. 249, 253–54, 112 S.Ct. 1146, 1149, 117 L.Ed.2d 391 (1992)).

TORT REPORT FOR NONPUBLISHED DECISIONS (MINUS WORKERS COMP):

IF YOU WANT

WORKERS COMPENSATION LAW UPDATES, I RECOMMEND YOU GO TO THE COMP ED WEB SITE AT http://www.comped.net/.
FAMILY LAW UPDATES, I RECOMMEND YOU GO TO Diana Skaggs' Divorce Law Journal at http://www.divorcelawjournal.com

834. SETTLEMENTS. AUTHORITY. CONFLICT OF INTEREST.
PRESCOTT (KEVIN)
VS.
CANNON (ALTON)
OPINION VACATING AND REMANDING
COMBS (PRESIDING JUDGE)
CAPERTON (CONCURS) AND THOMPSON (CONCURS)
2010-CA-001794-MR
NOT TO BE PUBLISHED
BULLITT

COMBS, JUDGE: Kevin Prescott appeals an order of the Bullitt Circuit Court granting the motion of Alton Cannon, Administrator De Bonis Non, of the Estate of Robert V. Denk, to enforce a settlement of the parties’ claims. After our review, we vacate and remand for further proceedings.

When determining whether to settle a claim, our courts recognize that final decision-making authority rests with a client -- not with his attorney. Clark, 917 S.W.2d at 575. Without his client’s express authority, an attorney generally has no authority to bind his client to a settlement or compromise. Id. at 576. Kentucky’s Rules of Professional Conduct mandatorily direct that an attorney “shall abide by a client’s decision whether to accept an offer of settlement . . . .” Rule[s] of the Supreme Court (SCR) 3.130-1.2(a). (Emphasis added.)
In Clark v. Burden, 917 S.W. at 577, the Supreme Court of Kentucky directed that where a dispute erupts as to whether a client has given settlement authority to his attorney, “the trial court shall summarily decide the facts.” In such a proceeding, the attorney-client privilege will not prevent the attorney from testifying as to the client’s instructions regarding settlement. Id. Whether Prescott gave Esmailzadeh express authority to settle the matter was the critical issue at the court’s hearing. Esmailzadeh’s testimony was material to the interests of both parties and was critical to a resolution of this central issue of authorization. However, SCR 3.130-3.7(a) specifically provides that a “lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness. . . .”1 Comment 5 to SCR 3.130-3.7 indicates that where there is likely to be substantial conflict between the testimony of the client and that of the lawyer, the representation is improper. The comment also provides that the problem can arise whether the lawyer is called as a witness on behalf of the client or is called by the opposing party.
Although our Rules of Professional Conduct indicate that determining whether such a conflict exists is primarily the responsibility of the lawyer involved, courts have an abiding and independent interest in assuring that representation of litigants is not compromised by an improper conflict of interest. Under the circumstances presented here -- where an attorney was required to continue in the representation despite a patent conflict of interest, the integrity of both the court and the attorney was undermined. While neither of the parties on appeal was in a position to have raised the issue of the unadjudicated conflict of interest before this court, the error has grave implications beyond the Bullitt Circuit Court, these attorneys, and these parties. Therefore, we hold that the court erred in failing to enter an order permitting Esmailzadeh to withdraw from the representation.2 We remand for a re-trial on the merits of the case.
The order of the Bullitt Circuit Court enforcing the alleged settlement is vacated. This matter is remanded for further proceedings consistent with our opinion.

Jan. 26-30, 2009: US Sixth Circuit Court of Appeals Decisions

Michael Stevens — 2009-01-31T17:49:23-05:00

PUBLISHED OPINIONS

Opinion	Short Title/District
09a0026p.06	USA v. Kenneth Johnson Western District of Michigan at Grand Rapids
09a0027p.06	Gary Winnett v. Caterpillar, Inc. Middle District of Tennessee at Nashville
09a0028p.06	Carol Negron v. USA Northern District of Ohio at Cleveland
09a0029p.06	USA v. Russell Wimbley Eastern District of Tennessee at Knoxville
09a0030p.06	USA v. Christian Gagnon Eastern District of Michigan at Detroit
09a0031p.06	Harris v. Lafler Eastern District of Michigan at Detroit
09a0032p.06	USA v. Young Eastern District of Tennessee at Winchester
09a0032p.06	USA v. Roller Eastern District of Tennessee of Chattanooga

NOT RECOMMENDED FOR PUBLICATION OPINIONS

Opinion	Short Title/District
09a0055n.06	Edwin Ejikeme v. Don Violet Southern District of Ohio at Columbus
09a0056n.06	USA v. Ivey Western District of Tennessee at Jackson
09a0057n.06	Creusere v. Weaver Eastern District of Kentucky at Covington
09a0058n.06	Abou Sambia v. Michael Mukasey Board of Immigration Appeals
09a0059n.06	USA v. Jackson Western District of Kentucky at Bowling Green
09a0059n.06	USA v. Hines Western District of Kentucky at Bowling Green
09a0060n.06	USA v. Barry Humphries Eastern District of Michigan at Ann Arbor
09a0061n.06	David Martin v. Cincinnati Gas and Electric Co Eastern District of Kentucky at Covington
09a0062n.06	USA v. Charles Hughes Western District of Michigan at Grand Rapids
09a0063n.06	USA v. White Southern District of Ohio at Columbus
09a0064n.06	USA v. Harris Northern District of Ohio at Cleveland
09a0065n.06	USA v. Quijada Southern District of Ohio at Columbus
09a0066n.06	USA v. Henderson Eastern District of Tennessee of Chattanooga
09a0067n.06	USA v. Robert Malone Eastern District of Michigan at Flint
09a0068n.06	USA v. Jones Southern District of Ohio at Cincinnati
09a0069n.06	USA v. Smith Northern District of Ohio at Cleveland
09a0070n.06	John Cleary v. Michael B. Mukasey Southern District of Ohio at Columbus
09a0071n.06	USA v. Smith Eastern District of Tennessee at Knoxville
09a0072n.06	USA v. Wilkins Eastern District of Tennessee of Chattanooga
09a0073n.06	USA v. Charles Humes Western District of Tennessee at Memphis
09a0074n.06	James Marr, Jr. v. Commonwealth Land Title Insura Western District of Kentucky at Louisville
09a0075n.06	Angela Dudley v. Ohio Department of Public Safe Northern District of Ohio at Cleveland

ECF Update - Notice Amendments to Local Rules Effective 1/12/2009

Michael Stevens — 2009-01-31T17:41:42-05:00

Here is an update on Sixth Cir. Local Rules Amendments.

Since I am not a major Sixth Circuit practitioner, any help from the readers regarding announcements and rule changes relative to the Sixth Circuit would be very much appreciated!

I go into their site weekly (or thereabouts) and tabulate and post the week's decisions by name, lower court, AND link to the decision. I only catch developments serendipitously.

NOTICE OF AMENDMENT
Sixth Circuit Rules 10, 27, 28, 30, and 101
Sixth Circuit Internal Operating Procedures 10 and 11
Sixth Circuit Guide to Electronic Filing

EFFECTIVE JANUARY 12, 2009

The Sixth Circuit Court of Appeals has adopted amendments to several of its local Rules, Internal Operating Procedures, and the Guide to Electronic Filing. These amendments are all effective as of January 12, 2009. The text of the Rules, the Procedures, and the Guide, reflecting these amendments, are available at the links provided above.

The amendments to the Rules were adopted without prior public notice or opportunity to comment upon the Court’s determination that an immediate need existed therefor; 6 Cir. R. 47(a). Pursuant to that Rule the court will welcome comment from any interested persons not later than April 13, 2009. Comments may be addressed to ca06-rules_comments@ca6.uscourts.gov.

Links to full text decisions in our Jan 5-9, Jan. 12-16, and Jan. 19-23, 2009 posts have been fixed. Sorry.

Michael Stevens — 2009-01-31T17:31:49-05:00

There is nothing like starting the new year with a mea culpa and an apology.

The links in the previous three posts (Jan 5 - 23, 2009) have been repaired.

Here are the posts:

Jan. 19-23, 2009: US Sixth Circuit Court of Appeals Decisions [UPDATED: Links repaired on 1/31/2009]

Michael Stevens — 2009-01-27T21:38:55-05:00

PUBLISHED OPINIONS

Opinion	Short Title/District
09a0020p.06	Geoffrey Fieger v. Michigan Supreme Court Eastern District of Michigan at Detroit
09a0021a.06	USA v. Bailey Eastern District of Kentucky at Covington
09a0022p.06	Dennis Pennington v. State Farm Mutual Automobile I Eastern District of Kentucky at Lexington RONALD LEE GILMAN, Circuit Judge. Stacey Pennington, the 17-year-old daughter of Dennis and Sharon Pennington, was killed in an automobile accident in July 2004. The Penningtons had four drivers in their family, all of whom were insured by State Farm Mutual Automobile Insurance Company. In addition to insuring their vehicles, the Penningtons purchased underinsured motorist (UIM) coverage with limits of $100,000 per person/$300,000 per accident (100/300 UIM coverage). UIM coverage provides funds to an insured if the liability insurance held by the person responsible for the accident is insufficient to compensate the insured for injuries incurred. At issue on appeal is whether, under Kentucky law, an insurance company may charge a greater UIM premium based on the number of drivers on a policy without being liable for multiple UIM coverage units (i.e., “stacking”). The district court determined that the Penningtons purchased only one unit of 100/300 UIM coverage for four drivers and were not entitled to stacking. This appeal followed. A few weeks prior to oral argument, the Penningtons filed a motion asking us to certify the legal question at issue to the Kentucky Supreme Court. For the reasons set forth below, we DENY the motion to certify and AFFIRM the judgment of the district court.
09a0023p.06	Garner v. Cuyahoga Cnty Court Northern District of Ohio at Cleveland
09a0024p.06	Carter v. Welles-Bowen Realty Northern District of Ohio at Toledo
09a0025p.06	Barr v. Lafon Eastern District of Tennessee at Knoxville

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION OPINIONS

Opinion	Short Title/District
09a0040n.06	USA v. Cornelius Easley Western District of Tennessee at Memphis
09a0041n.06	Cadle Co v. Reiner, Reiner & Bendett Northern District of Ohio at Youngstown
09a0042n.06	Pepaj v. Mukasey Board of Immigration Appeals
09a0043n.06	USA v. Robson Eastern District of Michigan at Detroit
09a0044n.06	USA v. Ashiq Eastern District of Kentucky at London
09a0045n.06	Artan Prifti v. Michael Mukasey Board of Immigration Appeals
09a0046n.06	Cynthia Turnage v. Norfolk Southern Corporation Eastern District of Tennessee at Knoxville
09a0047n.06	David Myers v. Huron County, Ohio Northern District of Ohio at Toledo
09a0048n.06	Linda Wolfanger v. Laurel County, Kentucky Eastern District of Kentucky at London
09a0049n.06	Jones v. Trombley Eastern District of Michigan at Detroit
09a0050n.06	Giklin Arauz v. Ricky Bell Middle District of Tennessee at Nashville
09a0051n.06	USA v. Neeley Eastern District of Kentucky at London
09a0052n.06	USA v. Jesse Stark Western District of Michigan at Marquette
09a0053n.06	Devereaux v. Mills Eastern District of Tennessee at Knoxville
09a0054n.06	USA v. Ricardo Cornejo Western District of Michigan at Grand Rapids

Jan. 12 - 16, 2009: US Sixth Circuit Court of Appeals Decisions [UPDATED: Links repaired on 1/31/2009]

Michael Stevens — 2009-01-27T21:23:49-05:00

PUBLISHED OPINIONS

Opinion	Short Title/District
09a0012p.06	Leonard Pivnick v. White Getgey & Meyer Co. LPA Southern District of Ohio at Cincinnati
09a0013p.06	USA v. Bates Eastern District of Michigan at Detroit
09a0013p.06	USA v. Bates Eastern District of Michigan at Detroit
09a0014p.06	USA v. Booth Eastern District of Tennessee of Chattanooga
09a0015p.06	USA v. Skipper Northern District of Ohio at Cleveland
09a0016p.06	Kevin Keith v. David Bobby Northern District of Ohio at Cleveland
09b0001p.06	In re: Omega Door Co v. U.S. Bankruptcy Court - Youngstown
09b0001p.06	In re: Omega Door Co v. U.S. Bankruptcy Court - Youngstown
09a0017p.06	Christine Ladd v. Grand Trunk Western Railroad, Eastern District of Michigan at Detroit
09a0018p.06	Poteet v. Medtronic Inc Western District of Tennessee at Memphis
09a0019p.06	Shan Zhao v. Michael B. Mukasey Board of Immigration Appeals

NOT RECOMMENDED PUBLICATION OPINIONS

Opinion	Short Title/District
09a0020n.06	Inglesias v. Davis Western District of Michigan at Marquette
09a0021n.06	Edmundo Romberio v. UnumProvident Corporation Eastern District of Tennessee of Chattanooga
09a0022n.06	USA v. LeBreux Northern District of Ohio at Akron
09a0022n.06	USA v. Moore Northern District of Ohio at Akron
09a0022n.06	USA v. Stratman Northern District of Ohio at Akron
09a0022n.06	USA v. Shrewder Northern District of Ohio at Akron
09a0023n.06	Hamadna v. Mukasey Board of Immigration Appeals
09a0024n.06	USA v. Tony Mitchell Western District of Tennessee at Memphis
09a0025n.06	Larry Melton v. Harold Blankenship Western District of Tennessee at Jackson
09a0026n.06	Norman Choate v. National Railroad Passenger Co Eastern District of Michigan at Detroit
09a0027n.06	USA v. Bill Layne Eastern District of Tennessee of Chattanooga
09a0028n.06	USA v. Janet Austin Western District of Tennessee at Memphis
09a0028n.06	USA v. Janet Austin Western District of Tennessee at Memphis
09a0029n.06	USA v. Brown Western District of Tennessee at Memphis
09a0030n.06	Freddie Williams, Jr. v. Detroit Board of Education Eastern District of Michigan at Detroit
09a0031n.06	USA v. Fields Western District of Tennessee at Memphis
09a0032n.06	Est of Robt Thomas v. Amer River Transp Western District of Tennessee at Memphis
09a0032n.06	Est of Robt Thomas v. Amer River Transp Western District of Tennessee at Memphis
09a0033n.06	Sumardi Sunarto v. Michael Mukasey Board of Immigration Appeals
09a0034n.06	Maria Fernandez-Marin v. Michael Mukasey Board of Immigration Appeals
09a0035n.06	Roberta Casden v. Michael Burns Northern District of Ohio at Toledo
09a0036n.06	USA v. Conner Eastern District of Kentucky at Lexington
09a0037n.06	USA v. Gregory McMurry Middle District of Tennessee at Cookeville
09b0001n.06	In re: Elizabeth Ann DIrks v. U.S. Bankruptcy
09a0038n.06	USA v. William Quinn Southern District of Ohio at Cincinnati
09a0039n.06	William Flowers v. City of Detroit Eastern District of Michigan at Detroit

Jan. 5 - 9, 2009: US Sixth Circuit Court of Appeals Decisions [UPDATED: Links repaired on 1/31/2009]

Michael Stevens — 2009-01-27T21:13:39-05:00

PUBLISHED OPINIONS

Opinion	Short Title/District
09a0001p.06	In re: Linda S. Cook v. Northern District of Ohio at Cleveland
09a0002p.06	David Patterson v. Hudson Area Schools Eastern District of Michigan at Detroit
09a0003p.06	Fioravante Settembre v. Fidelity & Guaranty Life Insur Western District of Kentucky at Louisville KETHLEDGE, Circuit Judge. In this matter, the bankruptcy court granted the appellants (collectively, “Fidelity”) summary judgment on their complaint against the debtor, Fioravante Settembre, for denial of a discharge. The district court reversed and remanded the case for trial on Fidelity’s complaint. Fidelity now seeks review of the district court’s order.
09a0004p.06	The Natl Cotton Cncl v. EPA Environmental Protection Administration
09a0004p.06	BASF Corp v. EPA Environmental Protection Administration
09a0004p.06	Southern Crop v. EPA Environmental Protection Administration
09a0004p.06	Waterkeeper Alliance v. EPA Environmental Protection Administration
09a0004p.06	Agribusiness Assoc v. EPA Environmental Protection Administration
09a0004p.06	Baykeeper v. EPA Environmental Protection Administration
09a0004p.06	Environmental Maine v. EPA Environmental Protection Administration
09a0004p.06	Syngenta Crop v. EPA Environmental Protection Administration
09a0004p.06	IL Fertilizer v. EPA Environmental Protection Administration
09a0004p.06	Croplife America v. EPA Environmental Protection Administration
09a0004p.06	Delta Council v. EPA Environmental Protection Administration
09a0005p.06	Jay Gunasekera v. Dennis Irwin Southern District of Ohio at Columbus
09a0006p.06	USA v. Gunter Eastern District of Tennessee at Greeneville
09a0007p.06	Murphy v. State of Ohio Northern District of Ohio at Toledo
09a0007p.06	Murphy v. State of Ohio Northern District of Ohio at Toledo
09a0008p.06	USA v. Paull Northern District of Ohio at Cleveland
09a0009p.06	Duncan v. USA Western District of Tennessee at Jackson
09a0010p.06	Fannie Shaw v. Aurgroup Fin'l Credit Union Southern District of Ohio at Cincinnati
09a0011p.06	USA v. Jean Panak Northern District of Ohio at Youngstown

NOT RECOMMENDED PUBLICATION OPINIONS

Opinion	Short Title/District
09a0001n.06	Pickering v. Mukasey Board of Immigration Appeals
09a0002n.06	Irwin Seating Company v. International Business Machine Western District of Michigan at Grand Rapids
09a0003n.06	Joshua Davis v. Kurt Jones Eastern District of Michigan at Detroit
09a0004n.06	Durham v. US Parole Comm Eastern District of Kentucky at London
09a0005n.06	Johnson Coal Company v. Bertha Smith Benefits Review Board
09a0006n.06	Old Republic Insurance Company v. Underwriters Safety and Claims Western District of Kentucky at Louisville
09a0007n.06	Uszak v. Yellow Transp Northern District of Ohio at Cleveland
09a0008n.06	Lydia Mason v. Michael Mukasey Board of Immigration Appeals
09a0009n.06	USA v. Jerry Craig Eastern District of Tennessee at Greeneville
09a0009n.06	USA v. Bradley Craig Eastern District of Tennessee at Greeneville
09a0010n.06	Maklaj v. Mukasey Board of Immigration Appeals
09a0011n.06	Lizzie Howard v. Nationwide Property and Casual Western District of Tennessee at Memphis
09a0012n.06	USA v. Wilson Eastern District of Michigan at Detroit
09a0013n.06	Ndue Prendi v. Michael Mukasey Board of Immigration Appeals
09a0014n.06	Mamoudou Diakite v. Michael Mukasey Board of Immigration Appeals
09a0015n.06	USA v. Bishop Eastern District of Tennessee at Knoxville
09a0016n.06	USA v. Perez Southern District of Ohio at Dayton
09a0017n.06	USA v. Kellogg Eastern District of Tennessee of Chattanooga
09a0018n.06	USA v. Christopher Hodge Western District of Kentucky at Louisville
09a0019n.06	Transition Healthcare Associat v. Tri-State Health Investor Northern District of Ohio at Toledo

Dec. 29, 2008 - Jan. 2, 2009: US Sixth Circuit Court of Appeals Decisions

Michael Stevens — 2009-01-27T20:57:13-05:00

PUBLISHED OPINIONS

Opinion	Short Title/District
08a0460p.06	Krispen Carroll v. Jason Sanders Eastern District of Michigan at Detroit
08a0460p.06	Krispen Carroll v. Jason Sanders Eastern District of Michigan at Detroit
08a0461p.06	Beth Freeman v. Blue Ridge Paper Products, Inc Eastern District of Tennessee at Greeneville
08a0462p.06	John Doe v. SexSearch.com Northern District of Ohio at Toledo
08a0463p.06	Brown v. Smith Eastern District of Michigan at Detroit
08a0464p.06	U.S. Motors v. General Motors Europe Eastern District of Michigan at Detroit
08a0465p.06	USA v. Davis Eastern District of Michigan at Detroit

NOT RECOMMENDED FOR PUBLICATION OPINIONS

Opinion	Short Title/District
08a0787n.06	Tipton v. Carlton Eastern District of Tennessee at Knoxville
08a0788n.06	Dorr v. Ecorse Eastern District of Michigan at Detroit
08b0017n.06	In re: Clayton B. Smith v. U.S. Bankruptcy Court - Canton
08a0789n.06	USA v. Wells Middle District of Tennessee at Nashville

Dec. 22-26, 2008: US 6th Circuit Court of Appeals Decisions

Michael Stevens — 2008-12-28T20:35:15-05:00

PUBLISHED OPINIONS

Opinion	Short Title/District
08a0453p.06	Total Benefits Planning Agency v. Anthem Blue Cross and Blue Shield Southern District of Ohio at Cincinnati
08a0454p.06	USA v. Gross Eastern District of Tennessee of Chattanooga
08a0454p.06	USA v. Wilkins Eastern District of Tennessee of Chattanooga
08b0022p.06	In re: Randall J. Hake v. U.S. Bankruptcy Court - Youngstown
08a0455p.06	Warehouse Production and Maint v. Zenith Logistics, Inc. Southern District of Ohio at Cincinnati
08a0456p.06	Iroquois on the Beach, Inc. v. General Star Indemnity Company Western District of Michigan at Marquette MYRON H. BRIGHT, Circuit Judge. Appellant Iroquois on the Beach, Inc. (“Iroquois”), a seasonal hotel insured under an “all risk” policy, appeals from the district court’s1 grant of summary judgment dismissing its claims against General Star Indemnity Company (“General Star”) for water and wind damage losses sustained to its building. The district court determined that exclusion B.2.f. of the insurance policy applied to preclude insurance coverage. The record without dispute established that continuous or repeated seepage or leakage of water over a period of at least fourteen days caused the damages to the insured hotel and that this cause came within the above exclusion. We affirm.
08a0456p.06	Iroquois on the Beach, Inc. v. General Star Indemnity Company Western District of Michigan at Marquette
08a0457p.06	USA v. White Eastern District of Kentucky at Covington
08a0458p.06	Huber Winery v. Wilcher Western District of Kentucky at Louisville CLAY, Circuit Judge. Intervenor Wine and Spirits Wholesalers of Kentucky, Inc., appeals the district court’s grant of partial summary judgment to Plaintiffs Cherry Hill Vineyards, LLC, William G. Schneider, Jr., and John D. Reilly, Jr. Plaintiffs filed suit pursuant to 42 U.S.C. § 1983, successfully challenging the constitutionality of certain provisions of Kentucky’s laws regulating small farm wineries. The district court ruled, pursuant to the Supreme Court’s decision in Granholm v. Heald, 544 U.S. 460 (2005), that the in-person purchase requirement in portions of Kentucky’s statutory scheme discriminated against interstate commerce by limiting the ability of out-of-state small farm wineries to sell and ship wine to Kentucky consumers. For the reasons that follow, we AFFIRM the judgment of the district court.
08a0459p.06	Peter Grain v. Trinity Health Eastern District of Michigan at Detroit

NOT RECOMMENDED FOR
FULL-TEXT PUBLICATION OPINIONS

Opinion	Short Title/District
08a0775n.06	Austin v. SecureCare Inc Eastern District of Michigan at Detroit
08a0776n.06	USA v. Smith Western District of Michigan at Grand Rapids
08a0777n.06	Taylor Chevrolet Inc v. Medical Mutual Services LLC Southern District of Ohio at Columbus
08a0778n.06	Kenneth Clack v. Rock-Tenn Company, Mill Divisi Eastern District of Tennessee of Chattanooga
08a0779n.06	Ndoci v. Mukasey Board of Immigration Appeals
08a0780n.06	Connolly v. Howes Western District of Michigan at Kalamazoo
08a0781n.06	Hurst v. Jackson Eastern District of Michigan at Detroit
08a0782n.06	USA v. Jackson Southern District of Ohio at Columbus
08a0783n.06	Panzie Smith v. Allstate Indemnity Company Southern District of Ohio at Cincinnati COOK, Circuit Judge. Panzie Smith sued Allstate Indemnity Company (“Allstate”) for reimbursement of losses resulting from a house fire. Summary judgment proceedings and a jury verdict favored Allstate. Smith now appeals. I. A fire that began in the early morning, subsided, then rekindled several hours later destroyed Panzie Smith’s home on May 7, 2004. Smith immediately alerted her insurer, Allstate, precipitating an investigation that same day. An Allstate agent interviewed witnesses (including Smith, her husband, and neighbors), studied the fire’s origin, and assessed the damages. This process disclosed discrepancies about the cause and timing of the fire, the time the fire department arrived, and the true contents of the house. From its investigation, Allstate also learned that the Smiths had a strong financial motive to burn their home and ample opportunity. And most importantly, an outside investigator hired by Allstate determined that an intentional act caused the rekindle. Having considered all these factors, Allstate refused to pay Smith’s claim, relying on policy provisions excluding: (1) losses resulting from “[i]ntentional or criminal acts of or at the direction of any insured person,” and (2) “any loss or occurrence in which any insured person has concealed or misrepresented any material fact or circumstance.” * * * Affirmed.
08a0784n.06	Dodson v. Wilkinson Southern District of Ohio at Columbus

Dec. 15-19, 2008: US 6th Circuit Court of Appeals Decisions

Michael Stevens — 2008-12-21T17:35:14-05:00

PUBLISHED OPINIONS

Opinion	Short Title/District
08a0444p.06	Leslie Warthman v. Genoa Township Board of Truste Southern District of Ohio at Columbus RONALD LEE GILMAN, Circuit Judge. Leslie Warthman filed a complaint in the Court of Common Pleas for Delaware County, Ohio, arguing that the Genoa Township Board of Trustees violated the Ohio Open Meetings Law when it terminated her employment without allowing her to respond to the allegations against her at a public hearing. The Township removed the case to the federal district court on the basis that a reference in the complaint to the Due Process Clause of the Fourteenth Amendment to the United States Constitution created federal question jurisdiction. Holding that the complaint did not state a federal cause of action, the district court remanded Warthman’s lawsuit to the state court. The district court declined, however, to award Warthman the costs and attorney fees associated with the removal and subsequent remand. For the reasons set forth below, we VACATE the portion of the district court’s judgment that denied Warthman her request for costs and attorney fees and REMAND the case for reconsideration of that issue.
08a0445p.06	USA v. Haygood Eastern District of Michigan at Detroit
08a0446p.06	Auto-Owners Insurance Company v. Redland Insurance Company Western District of Michigan at Grand Rapids SUTTON, Circuit Judge. The question prompted by this insurance dispute is whether a driver of a tractor-trailer rig operates “in the business” of a motor carrier after he completes one delivery and, in anticipation of receiving another delivery order, begins to drive to find a place to sleep for the night—at which point a fatal car accident occurs. There, the truck driver testified that, “after dropping off a trailer [at the last delivery point], he considered the day’s work over.” Id. at 484. Because the last delivery was a “one-way haul,” the driver explained, he “never got paid a dime for going no place after he left [the last elivery point].” Id. (internal quotation marks omitted). The only reason he chose to drive his truck back to the carrier’s office after eating his dinner was because he “had no other place to park it.” Id. He was under no obligation to return to the carrier’s office, and the carrier allowed truckers to park their rigs at its office merely as a matter of convenience. Id. at 591. Here, Gale’s actions were directly linked to Everhart’s commercial interests. Gale was paid roughly $150 a day as long as the truck was available to pick up a load. Fresh off making one delivery for Everhart and reasonably expecting to receive a new assignment the next day, Gale was trying to find a place to sleep (so that he would be qualified to pick up the next day’s load) and positioning himself to get to “Gary—East of Chicago” (where he reasonably expected his next pick-up would be). In the context of this insurance policy and on the undisputed facts of this case, the tractor-trailer rig was being “used . . . in the business” of Everhart Trucking at the time of the accident and thus was not covered by the Redland policy. For these reasons, we affirm.
08a0447p.06	UAW v. ArvinMeritor Inc Eastern District of Michigan at Detroit RONALD LEE GILMAN, Circuit Judge. This is an action by retired employees and their union against Rockwell International Corporation and its successor companies. The plaintiffs sued the defendants under § 301 of the Labor Management Relations Act (LMRA) and the Employee Retirement Income Security Act (ERISA) to enforce what they contend was a promise by the defendants in the applicable collective bargaining agreements (CBAs) to provided retirees and their surviving spouses with lifetime healthcare benefits. Finding that the CBAs contained such enforceable promises, the district court granted summary judgment to the plaintiffs. For the reasons set forth below, we AFFIRM the judgment of the district court.
08a0448p.06	USA v. Steven Shor Eastern District of Michigan at Detroit
08a0449p.06	Adrian & Blissfield R.R. Co. v. Village of Blissfield Eastern District of Michigan at Detroit
08a0450p.06	West v. Bell Eastern District of Tennessee at Knoxville
08a0450p.06	West v. Bell Eastern District of Tennessee at Knoxville
08a0451p.06	Shropshire v. Laidlaw Transit Inc Eastern District of Michigan at Detroit ALAN E. NORRIS, Circuit Judge. In this personal injury action, Livonia Shropshire brought suit against defendant Laidlaw Transit, Inc., on behalf of her daughter, Hannah,1 for injuries sustained in an automobile accident that occurred when she was five years old. Because our jurisdiction is premised on diversity of citizenship, 28 U.S.C. § 1332, we apply state substantive law. Michigan’s no-fault automotive insurance scheme governs this case, and requires a plaintiff to show the existence of a “serious impairment of body [sic] function” to recover noneconomic damages. The statute further provides that, for a plaintiff such as Hannah, who alleges she suffered a closed-head injury, whether she is seriously impaired is a question for the jury if a physician testifies under oath that the plaintiff “may have a serious neurological injury.” In the district court, plaintiffs sought to introduce an affidavit satisfying this provision, but the court ruled it inadmissible. Without it, plaintiffs had no evidence that Hannah had suffered a serious impairment of body function, and the district court consequently granted summary judgment to defendant. Plaintiff appealed, and we now affirm the decision of the district court, though upon different reasoning.
08a0451p.06	Shropshire v. Laidlaw Transit Inc Eastern District of Michigan at Detroit
08a0452p.06	USA v. Davis Eastern District of Michigan at Detroit

NOT RECOMMENDED FOR
FULL-TEXT PUBLICATION OPINIONS

Opinion	Short Title/District
08a0759n.06	Anthony Legion v. Kenneth McKee Eastern District of Michigan at Flint
08a0760n.06	Martin v. United States DOL, et al. Department of Labor (except OSHA)
08a0761n.06	Purnell v. Arrow Financial Serv Eastern District of Michigan at Detroit PER CURIAM. Plaintiff Leslie Purnell brought this action against defendant Arrow Financial Services, LLC, alleging that Arrow’s efforts to collect on a long-closed Montgomery Wards account in his name violated federal and state statutes governing debt collection practices. Plaintiff’s appeal challenges the district court’s decision, after a bifurcated trial on some claims, to dismiss the remaining federal claims as barred by the oneyear limitations period set forth in the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692k(d). After review of the record and the applicable law, we reverse and No. 07-1903 2 The district court also declined to exercise supplemental jurisdiction over Purnell’s 1 state law claims for violation of the Michigan Occupational Code, Mich. Comp. Laws § 339.901, and the Michigan Debt Collection Practices Act, Mich. Comp. Laws § 445.252. The dismissal of those claims without prejudice is not directly challenged on appeal. 2The letters were sent February 26, 2002, August 26, 2002, October 11, 2002, February 26, 2003, and August 9, 2004. Arrow spoke to plaintiff on August 23, 2002, October 9, 2002, and August 17, 2004. remand for further proceedings consistent with this opinion.
08a0762n.06	USA v. Martedis McPhearson Western District of Tennessee at Jackson
08a0763n.06	William Paluda v. ThyssenKrupp Budd Company Eastern District of Michigan at Detroit
08a0764n.06	USA v. Geiger Eastern District of Tennessee of Chattanooga
08a0765n.06	USA v. Mendez Middle District of Tennessee at Nashville
08a0765n.06	USA v. Borrego Middle District of Tennessee at Nashville
08a0765n.06	USA v. Bencomo-Castillo Middle District of Tennessee at Nashville
08a0765n.06	USA v. Hernandez Middle District of Tennessee at Nashville
08a0765n.06	USA v. Perez Middle District of Tennessee at Nashville
08a0766n.06	USA v. Roach Eastern District of Tennessee at Greeneville
08a0767n.06	Martin Marietta Materials, Inc v. Bank of Oklahoma Western District of Kentucky at Paducah
08a0767n.06	Martin Marietta Materials, Inc v. Bank of Oklahoma Western District of Kentucky at Paducah
08a0768n.06	USA v. Dewitt Southern District of Ohio at Dayton
08a0769n.06	Linden Bowman v. USA Northern District of Ohio at Cleveland
08a0770n.06	Xiao Zhuang v. Michael B. Mukasey Board of Immigration Appeals
08a0771n.06	Pe Win v. Michael Mukasey Board of Immigration Appeals