01/12/2017


Case Caption

Case No.Topics and IssuesAuthorDecided
State v. Lunder 103653Motion to suppress; Fourth Amendment; search and seizure; reasonable belief; totality of the circumstances; sufficient evidence; manifest weight of the evidence. The trial court properly denied the defendant-appellant's motion to suppress the evidence where the totality of the facts and circumstances known to the police officers gave rise to a reasonable belief that immediate entry into the building was necessary. The conviction was supported by sufficient evidence and was not against the manifest weight of the evidence.McCormack 1/12/2017
Snider Interests, L.L.C. v. Cannata 103659Civ.R. 24, motion to intervene; attorney contingency fee charging lien. The trial court properly denied, under Civ.R. 24, both permissive intervention, and intervention as a matter of right, to counsel seeking to intervene in a receivership action, where: (1) there is no statute providing an attorney with an unconditional right to a fee charging lien, (2) the attorney's right to recovery was contingent upon recovery by co-counsel, which recovery was denied by the trial court; and (3) there was no justification for the three-year, undue delay in seeking intervention.Laster Mays 1/12/2017
In re Contempt of Anderson 103732Indirect criminal contempt; R.C. 2705.02(A); abuse of discretion; vexatious litigator; R.C. 2323.52. Trial court acted unreasonably and abused its discretion by exercising its criminal contempt powers and imposing a sentence of 50 days in jail and $2,600 in fines for litigant's filings of motions and complaint after being declared a vexatious litigator.Boyle 1/12/2017
Galloway v. Galloway 103837Trust, probate, jurisdiction, plenary power, charging lien, real property. The probate court, through its plenary power, had jurisdiction over the attorney's request for a charging lien on the judgment obtained through an action involving a trust. The court did not abuse its discretion in allowing a charging lien to collect on attorney fees that arose from an hourly fee contract rather than a contingency fee contract. The probate court did not abuse its discretion in entering an attorney charging lien on real property because that was the judgment obtained in the prosecution of litigation from the underlying trust dispute. There was no abuse of discretion by the probate court to include fees incurred in defending claims that would have adversely affected the client's desired result in the underlying litigation. Finally, despite the client transferring the real property into his own family trust, the attorney could properly place the charging lien on the real property because the transfer occurred after the client received notice of the charging lien request.Keough 1/12/2017
State v. Ocasio 103972Failure to impose sentence; final, appealable order; jurisdiction; appeal dismissed. Because the trial court failed to impose a sentence on each and every offense for which the defendant appellant was found guilty, the judgment is not a final, appealable order. We therefore lack jurisdiction, and the appeal is dismissed.McCormack 1/12/2017
State v. Ledbetter 104077Drug trafficking; R.C. 2925.03; sentencing review; R.C. 2929.11; R.C. 2929.12; R.C. 2953.08; discretion; contrary to law; clear and convincing evidence; mandatory fine; costs; affidavit of indigency. The four-year sentence imposed by the trial court was not clearly and convincingly contrary to law where the court properly considered the factors under R.C. 2929.11 and 2929.12. The court also did not err in imposing fines and costs where appellant failed to file an affidavit of indigency prior to sentencing.Celebrezze 1/12/2017
State v. Catney 104141Motion to suppress; identification testimony; harmless error; sufficiency of the evidence; manifest weight of the evidence; robbery; R.C. 2911.02(C)(2); R.C. 2913.02(A); intent to commit a theft offense; attempted burglary; identity; sexually violent predator specification; R.C. 2941.148(A); R.C. 2971.01(H) - In bench trial, any error by trial court in denying defendant's motion to suppress identification testimony was harmless where trial court did not rely on the challenged testimony but instead based its identification of defendant on wholly unrelated evidence. Evidence was sufficient to support defendant's convictions for robbery, attempted burglary and sexually violent predator specifications accompanying attempted rape and kidnapping counts and convictions were not against manifest weight of the evidence. Intent to commit a theft offense could be inferred from the circumstances surrounding the crime. Eyewitness testimony that a male matching defendant's description had attempted entry of the victim's home coupled with DNA evidence linking defendant to a prior intrusion of the victim's home supported trial court's findings that defendant was the perpetrator of the crimes at issue. State presented sufficient evidence that defendant was likely to engage in sexually violent offenses in the future based defendant's convictions for attempted rape and kidnapping with a sexual motivation, a prior conviction for a sexually-oriented offense and the fact that defendant committed additional sexually-oriented offenses while participating in a sex offender treatment program.Gallagher 1/12/2017
State v. Pollock 104161R.C. 2907.32(a)(2)/pandering obscenity; sufficiency. Appellant's pictures were determined to be obscene, and sufficient evidence existed to show sexual conduct. The trial court did not err in entering a conviction against appellant.Jones 1/12/2017
State v. Norman 104244Rape; R.C. 2907.02(A)(1)(b); kidnapping; R.C. 2905.01(A)(4); gross sexual imposition; R.C. 2907.05(A)(2); child under the age of 13; competency to testify; Evid.R. 601; competency hearing; voir dire; sufficiency; manifest weight; plain error; cumulative error; prosecutorial misconduct; ineffective assistance of counsel; amendment of the indictment; jury instructions. Appellant's convictions for rape, kidnapping, and gross sexual imposition are supported by sufficient evidence and are not against the manifest weight of the evidence. The court did not commit prejudicial error in finding the three minor witnesses competent to testify, in making certain evidentiary ruling that appellant claims caused cumulative error, in giving jury instructions that included the age of the victims, and allowing the state to amend the indictment and bill of particulars to conform to the evidence adduced at trial. Appellant's counsel was not constitutionally ineffective and the prosecutor did not commit prosecutorial misconduct.Celebrezze 1/12/2017
State v. Saxon 104295Community control; violation; R.C. 2929.19(B); R.C. 2929.15(B)(1); restrictive; additional; modify; terms; subject matter jurisdiction; final sentence; authority. Trial court's imposition of sentence for the violation of community control sanctions was reversed. In accordance with R.C. 2929.15(B), a trial court lacks jurisdiction to impose additional terms of community control after the final sentence unless it determines the defendant violated the terms of community control. A violation cannot be premised on additional terms the trial court was not authorized to impose.Gallagher 1/12/2017
State v. Mitchell 104314Motion to dismiss indictment; R.C. 2323.52; and vexatious litigators. Appellate court lacked jurisdiction to address interlocutory decision denying defendant's motion to dismiss, arguing that vexatious litigant failed to obtain prior court approval before reporting defendant's alleged criminal conduct to police.Kilbane 1/12/2017
Khatib v. Peters 104318R.C. 2703.14 and Civ.R. 4.4/service by publication; witness credibility; Civ.R. 60(B)/motion for relief from judgment; void judgment. Appellee, an Ohio resident, produced sufficient evidence to overcome the inference of concealment. Appellant's service by publication upon appellee was not proper. Thus, the judgment against appellee was void.Jones 1/12/2017
Lucsik v. Kosdrosky 104324Medical negligence; Evid.R. 702; expert; qualification; cross-examination; jury instruction; R.C. 2323.43; damages; liability; harmless error; Loc.R. 21.1; reasonable degree of medical certainty; magic words; Evid.R. 616(A); Evid.R. 411; medical malpractice insurance; commonality. Defense verdict was affirmed in action for medical negligence. Trial court did not abuse its discretion with regard to certain evidentiary rulings. Expert witnesses may be cross examined regarding their qualifications. There is no requirement that an expert utter any magic words in terms of reasonable degree of medical certainty or probability. Trial court did not err in excluding expert witness testimony regarding the origin of his fee payments and evidence of insurance where there was no suggestion of commonality of insurance interests. Any error in the failure to provide a jury instruction pertaining to damages would have been harmless because the jury found no liability.Gallagher 1/12/2017
State v. Brock 104334R.C. 2929.11; R.C. 2929.12; R.C. 2947.23; court costs; ability to pay. The trial court was not required to make specific findings on the record with respect to its consideration of R.C. 2929.11 and 2929.12. R.C. 2947.23 provides that notification of possible court-ordered community service need only be given if the judge or magistrate imposes a community control sanction or other nonresidential sanction; the statute no longer requires such notification when a trial court imposes a prison term. The trial court properly exercised its discretion and ordered defendant to pay court costs, despite defendant's claim of being indigent.Boyle 1/12/2017
Mixon v. K&D Apt. Community Owners & Mgrs. 104338R.C. 5321.04(A)(4); elevator; summary judgment. Court did not err by granting summary judgment on claim for injuries suffered when plaintiffs were injured when an elevator car that dropped and stopped unexpectedly because the plaintiffs failed to show that defendant building owner and defendant elevator servicing company knew or should have known that the elevator was unsafe nor did the plaintiffs offer evidence showing why the elevator car malfunctioned.Stewart 1/12/2017
State v. Martin 104354Sentencing; contrary to law; R.C. 2953.08; R.C. 2929.14; R.C. 2929.11; R.C. 2929.12; court costs; R.C. 2947.23. The trial court's sentence is not contrary to law. However, the trial court imposed court costs in its sentencing journal entry without imposing those costs in open court during the sentencing hearing. This matter is remanded to the trial court for the limited purpose of allowing appellant to seek a waiver of court costs.Celebrezze 1/12/2017
State v. Neal 104358R.C. 2953.08(G)(2); R.C. 2911.11; R.C. 2911.12, sentencing. The trial court's sentence was not contrary to law. The record clearly and convincingly supports the trial court's findings. A trial court is only required to indicate in the sentencing entry that the statutory factors have been considered.Laster Mays 1/12/2017
State v. Linville 104359Ineffective assistance of counsel; forfeiture of personal property. Appellant's counsel was not ineffective because he failed to object to a judge's opinion about appellant's blood alcohol level. The appellant failed to show that counsel's representative was deficient and that there was prejudice. The trial court cannot order a forfeiture of the appellant's vehicle because it was not stated in the indictment.Laster Mays 1/12/2017
State v. Gibson 104363Search and seizure; motion to suppress; waive; ineffective assistance of counsel; costs; indigent defendant. Defendant waived the right to challenge the constitutionality of the search and seizure on appeal by failing to file a pretrial motion to suppress; counsel's failure to seek a waiver of costs based on defendant's indigency was deficient and prejudiced the defendant.Keough 1/12/2017
Hester v. Case W. Res. Univ. 104415Civ.R. 6(B)(2)/motion to strike; Civ.R. 56/summary judgment; Civ.R. 12(B)(6)/motion to dismiss; R.C. 2305.11(A)/statute of limitations, defamation; R.C. 4101.11/statutory duty to protect; at-will employee; tortious interference; retaliation; promissory estoppel. Appellee failed to establish an expired statute of limitations on appellant's defamation claim and it was error for the trial court to dismiss that claim; appellant's breach of statutory duty claim was properly dismissed where appellant did not allege that the university failed to provide a safe place of employment and that she suffered physical injuries. It was error for the trial court to dismiss appellant's tortious interference claim where a third-party employer was involved. Appellant failed to show that she was other than an at-will employee and that an employment contract existed; no promise was made to appellant that her previous position would be held for her and she made no attempt to apply for her previous position; the trial court's granting of appellee's summary judgment motion on appellant's promissory estoppel claim was proper. Appellant failed to establish a prima facie case of retaliation and the trial court's granting of summary judgment to appellee was proper.Jones 1/12/2017
Allegretti v. York 104449Statute of limitations; equitable estoppel; summary judgment. The trial court properly granted defendant's motion for summary judgment because plaintiff's claim had not been commenced within the applicable statute of limitations. Because the record contained no evidence of defendant preventing plaintiff from timely filing suit, the doctrine of equitable estoppel as a bar to the statute-of-limitations defense did not apply.Boyle 1/12/2017
Sutton v. Ohio Dept. of Edn. 104476R.C. 3319.31(B)(1)/conduct unbecoming; abuse of discretion; nexus test; OAC 3301-73-21(A); expert testimony; excessive suspension. Although the state board of education did not find an express nexus between appellant's conduct and his profession as an educator, the hearing officer did consider the nexus between appellant's conduct and his profession; it was not error for the trial court to affirm the Ohio Department of Education's decision. Appellant's conduct was reviewed in accordance with the factors established in OAC 3301-73-21 and under the authority of the state board of education; it was not an abuse of discretion where the trial court affirmed the board's decision that appellant's conduct was unbecoming. Appellant provided no authority that, prior to the state board of education adopting the hearing officer's recommendation that appellant be required to undergo a fitness-to-teach evaluation before returning to work, expert testimony should have been presented. The trial court found that the hearing officer's recommendation, adopted by the state board of education, was supported by substantial, reliable, and probative evidence.Jones 1/12/2017
Austin v. Chukwuani 104590Negligence; economic damages; manifest weight; judgment notwithstanding the verdict; Civ.R. 50; remittitur; motion for a new trial; Civ.R. 59. The trial court properly denied appellant's post-judgment motions for judgment notwithstanding the verdict, remittitur, and a new trial. The jury's verdict is not against the manifest weight of the evidence. The record contains substantial competent and credible evidence supporting the jury's verdict and economic damages award.Celebrezze 1/12/2017
State v. Jackson 104645Res judicata; vexatious litigator; App. R. 9; Loc.App.R. 23. The trial court did not err in denying appellant's motions to vacate his sentence based on void judgments because the appellant's arguments have already been determined to be without merit in his direct appeals. Appellant has also failed to overcome the presumption of regularity of the proceedings that applies where a properly certified copy of the relevant portions of the transcript has not been submitted. In light of appellant's repetitive pursuit of the same arguments, appellant has been warned that the continued filing of appeals and original actions that are frivolous and unwarranted by law shall result in a vexatious litigator declaration pursuant to Loc.App.R. 23(A).Laster Mays 1/12/2017
State v. Hatcher 104780Consecutive Community Control Sanctions; Sentencing. Trial court's sentence of community control sanctions to begin following appellant's completion of a prison term in a separate case from another county violated the prohibition on such sentences being imposed consecutively as set forth in State v. Anderson, 2016-Ohio-7044, 62 N.E.3d 229 (8th Dist.) and was, therefore, void.Gallagher 1/12/2017
State v. Small 104813Guilty plea; Crim.R. 11; presentence motion to withdraw; Crim.R. 32.1; innocence; change of heart; Peterseim factors; abuse of discretion. The trial court did not abuse its discretion where the record demonstrates appellant's new protestation of innocence was a change of heart and appellant was represented by highly competent counsel, he was given a full Crim.R. 11 hearing before entering his plea, the court gave full and fair consideration to appellant's request and it held a complete and impartial hearing on the motion to withdraw.McCormack 1/12/2017
State ex rel. Cowan v. Gallagher 104666Mandamus, defective sentence, adequate remedy in the ordinary course of the law, res judicata. The relator seeks a writ of mandamus in order to vacate the sentence of incarceration imposed by the trial court and require a new sentencing hearing. A writ of mandamus will not issue if there exists a plain and adequate remedy in the ordinary course of the law. A review of the docket in the relator's criminal case clearly demonstrates that the relator has already availed himself of adequate remedies through multiple appeals. In fact, the realtor has filed an appeal that is presently pending before this court. Finally, the relator's request for a writ of mandamus is barred by the doctrine of res judicata, because the issue of a defective sentence has already been addressed through the appellate processKilbane 1/11/2017
State v. Battiste 102299App.R. 26(B) application for reopening, untimely filed, good cause, reliance upon appellate counsel to inform appellant of App.R. 26(B), duty of appellate court to inform appellant of App.R. 26(B), successive App.R. 26(B) application for reopening. The appellant has filed a second App.R. 26(B) application for reopening. The application was not filed within ninety days of journalization of the appellate judgment subject to reopening. The appellant has failed to establish good cause, for the untimely filing of his application for reopening, through his argument that appellate counsel failed to inform him of App.R. 26(B) and the ninety-day rule. In addition, an appellate court possesses no duty to inform the appellant of App.R. 26(B). Finally, the appellant is not permitted to file a successive application for reopening.Gallagher 1/10/2017