02/16/2017


Case Caption

Case No.Topics and IssuesAuthorDecided
Berdysz v. Boyas Excavating, Inc. 104001Civ.R. 23/class-action certification. The trial court, after a rigorous analysis, properly found that plaintiffs met the requirements under Civ.R. 23 for class-action certification.Jones 2/16/2017
Fabrizi Trucking & Paving Co., Inc. v. Cleveland 104124Breach of contract; contract interpretation; summary judgment; Civ.R. 56; prejudgment interest; R.C. 1343.03; R.C. 2743.18. The interpretation of the parties' contract, which was not clear and unambiguous, was an issue of fact to be decided by the jury. Because a valid and enforceable contract existed between the parties, the trial court properly denied appellant's motion for summary judgment. The trial court abused its discretion by denying appellee's motion for prejudgment interest, as appellee was entitled to prejudgment interest as a matter of law.Celebrezze 2/16/2017
State v. Watts 104269 Repeat violent offender specification, mandatory, discretionary, findings Defendant's sentence was not contrary to law. The record supports that the trial court made the requisite findings to impose a discretionary sentence on the repeat violent offender specification.Keough 2/16/2017
State v. Price 104341 Remand, resentencing, R.C. 2929.11, R.C. 2929.12, recidivism, seriousness, vindictiveness, bias. Trial court complied with this court's remand-mandate to consider the factors contained in R.C. 2929.11 and 2929.12. The record does not support that the trial court was vindictive or biased toward defendant when it reimposed the original sentence on remand after considering the requisite sentencing factors.Keough 2/16/2017
State v. D.F. 104410R.C. 2919.23(A)(1); interference with custody. Conviction for interference with custody vacated for lack of sufficient evidence when the evidence showed that the parties often deviated from the parenting schedule and there was no evidence to show that the parties discussed when the child would be returned.Stewart 2/16/2017
Bank of New York Mellon v. Walker 104430Note; mortgage; statute of limitations; R.C. 1303.16; summary judgment; plain error; failure to object to magistrate's decision; ejectment; foreclosure; specialty; differing statute of limitations for note and mortgage; standing; conditions precedent. The trial court committed plain error in finding that appellants submitted no admissible evidence regarding previous foreclosure filings that would indicate an acceleration previously occurred that would mean the statute of limitations on the note barred recovery. The court did not commit plain error in granting summary judgment for foreclosure of the mortgage because that instrument is governed by a different statute of limitations as it is no longer a merely incidental to the note, but has its own remedies available. Appellants have not demonstrated plain error regarding standing or that all conditions precedent were not met.Celebrezze 2/16/2017
In re J.E. 104473 & 105098Shared parenting plan; adopting settlement agreement; unilateral rescission. A party cannot unilaterally rescind a settlement agreement unless the settlement was obtained through fraud, undue influence, or duress.Gallagher 2/16/2017
State v. Smith 104553Sufficiency of the evidence; manifest weight; aggravated vehicular assault; R.C. 2903.08; allied offenses; R.C. 2941.25; alternative means; impeachment with extrinsic evidence. Finding the defendant guilty of two counts of aggravated vehicular assault, for a violation of two of the alternative means of committing the offense under R.C. 2903.08(A)(1) and R.C. 2903.08(A)(2), was supported by the evidence, but the trial court erred by not merging those offenses because alternative means of committing a single offense are not separate and distinct offenses.Gallagher 2/16/2017
Gonzalez-Estrada v. Glancy 104570Prof.Cond.R. 3.7(a)(3)/disqualification of attorney; jury instruction; App.R. 9(B)/submission of transcript. It was not error for the trial court to order that appellant's counsel be disqualified where counsel was to be deposed and testify at trial. Appellant failed to provide a complete transcript on appeal and this court presumes regularity in the trial court's proceedings and issuance of its order.Jones 2/16/2017
State v. Bridges 104723Sentencing; resentencing; drug trafficking; drug possession; major drug offender specification; postrelease control; contrary to law; void judgment; res judicata. Appellant's argument that the trial court erred by imposing a ten-year prison sentence for his major drug offender specification at resentencing is barred by res judicata because the claim has been rejected by this court in a prior appeal.Celebrezze 2/16/2017
Cleveland v. Wilson 104746Transcript; Presume Regularity; Ninth Amendment; Tenth Amendment; United States Constitution; Jurisdiction; Moorish Nation; Traffic Offenses. - Defendant's convictions for driving with expired license plates and a suspended license affirmed where he did not provide a transcript of the lower court proceedings nor a substitute statement of the evidence, and appellate court was therefore required to presume regularity in the trial court proceedings; defendant's traffic citation did not violate either the Ninth or Tenth Amendments to the United States Constitution; the municipal court had jurisdiction over defendant's traffic offenses; defendant's alleged membership in the Moorish Nation did not enable him to violate traffic laws without consequence.Keough 2/16/2017
State v. Cooper 104797Motion to withdraw; guilty plea; postsentence; Crim.R. 32.1; manifest injustice; plea agreement; contract; parole; discretionary; parole board; inherent; constitutional right; due process. Trial court properly denied appellant's postsentence motion to withdraw guilty plea, which claimed the trial court's journal entry opposing parole release constituted a breach of his plea agreement. The trial court was not a party to the plea agreement, the parole board had the discretion to deny parole, and there is no inherent or constitutional right to be released on parole.Gallagher 2/16/2017
State v. Loper 104828Postrelease control; resentencing; completion of sentence - Trial court did not err in denying defendant's motion to terminate postrelease control. There was nothing in the record to support defendant's claim that trial court's resentencing to correct an error in imposing postrelease control occurred after defendant completed his sentence. Matter remanded for the trial court to enter a nunc pro tunc order correcting resentencing journal entry to include fact of conviction and defendant's complete sentence.Gallagher 2/16/2017
Ward v. Eaton U.S. Holdings 104841Settlement agreement; contract; mutual assent; parol evidence rule. Trial court violated the parol evidence rule in failing to enforce settlement agreement where defendant deducted $5,000 from the settlement amount pursuant to a separate agreement and the settlement agreement was silent as to plaintiff's obligation in the separate agreement to repay an overpayment.Gallagher 2/16/2017
State v. Nitsche 103174App.R. 26(B); untimely; procedurally defective; sworn statement; ineffective assistance of appellate counsel; Strickland test. Because defendant's application was procedurally defective and filed untimely without good cause, and because defendant failed to demonstrate a genuine issue that he was deprived effective assistance of appellate counsel, the application for reopening under App.R. 26(B) fails on multiple grounds.Gallagher 2/15/2017
State ex rel. McKee v. Gallagher 105392Prohibition; Cuyahoga County Common Pleas Court Loc.R. 29; arbitration, discretion; and amount in controversy. Relator sought a writ of prohibition on the grounds that the respondent judge exceeded her jurisdiction because the amount in controversy would not permit her to send the case to arbitration pursuant to Cuyahoga County Common Pleas Court Loc.R. 29. Because the amount in controversy was not established, the judge acted within her discretion to send the case to arbitration, and this court dismissed the application for a writ.Boyle 2/15/2017
State ex rel. Harris v. Sutula 105172Mandamus; procedendo; jail-time credit; mootness; and R.C. 2969.25(C). Writ action, seeking mandamus or procedendo to compel a ruling on a motion for jail-time credit, was rendered moot by the judge awarding additional jail-time credit. Relator failed to comply with R.C. 2969.25(C), which requires a poverty affidavit be supported by a cashier's statement.Celebrezze 2/10/2017