03/09/2017


Case Caption

Case No.Topics and IssuesAuthorDecided
U.S. Bank N.A. v. Koodrich 103802Civ.R. 56, motion for summary judgment; Civ.R. 36, withdrawal of motions; Civ.R. 53, decision of magistrate. The trial court properly granted summary judgment where the appellants failed to respond to requests for admissions, constituting an admission of appellee's entitlement to foreclosure. Appellants failed to establish entitlement to withdraw the request for admissions where appellants offered no evidence, justification or explanation for the failure and the record supports several attempts by appellee to secure discovery responses. Appellants were not prejudiced by the return of the magistrate's decision by the United States Postal Service mailed to appellants' counsel where the correct address for counsel was ambiguous, the notice of appeal was timely filed, appellants' admissions supported the grant of summary judgment and appellate review of the arguments were de novo and thus the issues were ultimately entertained.Laster Mays 3/9/2017
State v. Thomas 104174Indictment; probable cause; grand jury; presumption; R.C. 2903.21(A); R.C. 2903.13(A); assault; aggravated menacing; manifest weight; Crim.R. 36; nunc pro tunc; oversight; counts; sentences. The trial court did not err in denying motion to dismiss the indictment because the indictment by the grand jury created a legal presumption of probable cause. Appellant's convictions for aggravated menacing and assault were not against the manifest weight of the evidence. Case was remanded to the trial court for the issuance of a nunc pro tunc entry to accurately reflect the two counts on which the sentences were imposed.Gallagher 3/9/2017
Aftercare of Mayfield Village, Inc. v. Berner 104259 & 104306Guarantee; breach of contract; negligence; Nursing Home Residents' Bill of Rights; R.C. 3721.17; negligence per se; directed verdict; sanctions; attorney fees; frivolous conduct; Civ.R. 37(C); R.C. 2323.51; abuse of discretion. A violation of the Nursing Home Residents' Bill of Rights requires evidence of breach and causation as R.C. 3721.17 requires a demonstration of negligent conduct in order to receive compensatory damages. Therefore, the trial court did not err in omitting a jury instruction on negligence per se. The court did not err in directing a verdict in Altercare's favor on its breach of guarantee claim where the appellants had an opportunity to present defenses to Altercare's claim and appellants presented no evidence of fraud, mutual mistake, or ambiguity. To the extent appellants were deprived of the opportunity to present a defense as to Altercare's alleged breach of contract, the error is harmless. There was a full and fair consideration by the jury of the issues presented by the appellants and the jury found Altercare not negligent in providing services to the decedent. The trial court did not abuse its discretion in denying Altercare's motions for attorney fees under Civ.R. 37(C) and 2323.51 where the appellants presented disputed claims in good faith and the court found no evidence of frivolous conduct.McCormack 3/9/2017
Marathon Hotels, Inc. v. Miller Goler Faeges Lapine, L.L.P. 104301Motion to disqualify counsel; drastic measure; burden of proof; abuse of discretion; "third-party neutral;" mediation; Prof.Cond.R. 2.4(a); Prof.Cond.R. 1.2(a); objectively reasonable to believe attorney acting as a "third-party neutral." Grant of plaintiff's motion to disqualify counsel reversed. Plaintiff did not sustain burden of proving that defendants' counsel should be disqualified when it failed to rebut the expert's opinion and did not provide any evidence, such as a written agreement entered into by all parties that counsel act as a "third party neutral." Furthermore, counsel was hired by defendants as personal counsel and had billing statement indicating the same.Kilbane 3/9/2017
State v. Snowden 104339 Domestic violence, credibility, manifest weight of the evidence. Defendant's conviction for domestic violence was not against the manifest weight of the evidence where the jury could have reasonably concluded based on the defendant's own statements and the evidence that he caused the victim physical harm.Keough 3/9/2017
State v. Miller 104427 & 104428Suppression; standing; restitution; R.C. 2929.18; present and future ability to pay; indigence; court costs. The state concedes that court costs were not imposed at the sentencing hearing, but the defendant's convictions are affirmed because the defendant, as a passenger in the vehicle, lacked standing to challenge the search of the vehicle and the amount of restitution awarded to the victims did not exceed the economic loss because the trial court deducted any insurance proceeds received by the victims.Gallagher 3/9/2017
State v. Vandersspool 104444 & 104512R.C. 2953.08(D); sentencing review; agreed sentence; authorized by law; contrary to law; unreviewable sentence; void; voidable; allied offenses; failure to disclose exculpatory information; knowing, intelligent, voluntary plea; Brady violation; matters outside of the record; criminal history of a witness; postconviction relief. Appellant's 27-year agreed sentence is not reviewable on appeal because it was agreed to and authorized by law. Appellant's argument that his plea was not knowingly, intelligently, and voluntarily entered relied on information outside of the appellate record and is thus more appropriate for postconviction relief.Celebrezze 3/9/2017
State v. Thome 104445R.C. 2929.14(C)(4)/consecutive sentences. The trial court complied with R.C. 2929.14(C)(4) by making all the required findings necessary for the imposition of consecutive sentences.Jones 3/9/2017
State v. Watkins 104507Rape; consecutive sentences; R.C. 2929.14(C)(4); reasons; ineffective assistance of counsel. There is no requirement that a trial court provide reasons in support of the R.C. 2929.14(C)(4) findings, and trial counsel was not required to inquire into the defendant's protestations of innocence to crimes to which the defendant was not pleading guilty.Gallagher 3/9/2017
State v. Dawson 104509Rape; aggravated assault; felonious assault; conviction; knowingly; serious; physical harm; sufficient; manifest weight; jury instruction; provocation; self defense; rape shield; sexual activity; exception; confrontation clause; constitutional right; invited error; court costs. Defendant's felonious assault convictions were supported by sufficient evidence and were not against the manifest weight of the evidence. The trial court did not err by preventing defense counsel from cross-examining the victim about a specific instance of sexual activity pursuant to the rape shield statute. Defense counsel invited error by requesting competing jury instructions on aggravated assault and self defense. A trial court need not consider a defendant's ability to pay, as required by R.C. 2929.19 for the imposition of financial sanctions, before imposing court costs. The trial court did not abuse its discretion in imposing costs.Gallagher 3/9/2017
Flynn v. Pollock 104516Legal malpractice; expert testimony; summary judgment. Expert testimony is ordinarily required to establish the breach of duty in a legal malpractice case, unless the breach is within the ordinary knowledge of lay people. However, the appellant's claims against the appellees do not require an expert to determine if the appellees breached their duty to the appellant.Laster Mays 3/9/2017
Dabney v. Rock Ohio Caesars Cleveland, L.L.C. 104535Summary judgment; Civ.R. 56; assault; battery; intentional infliction of emotional distress; burden of proof. Defendant's motion for summary judgment was appropriate because the motion was well supported and plaintiff failed to present affidavits or other specified materials under Civ.R. 56 demonstrating a genuine issue of material fact.Gallagher 3/9/2017
In re J.S.C. 104548R.C. 3109.042(A)/unmarried mother's custodial rights; motion to enforce settlement agreement; residential parent. The trial court considered the parents as standing upon equality and designating each parent as the legal custodian when the child is in their respective possession was in the best interest of the child.Jones 3/9/2017
Cleveland v. Tricarichi 104615Ohio Manual on Uniform Traffic Control Devices; speed limit sign; speeding. Court did not err by finding defendant guilty of speeding when one of several speed limit signs passed by defendant conformed to applicable height requirements.Stewart 3/9/2017
State v. Cooper 104599Motion to suppress; R.C. 2947.23(A)(1)/imposition of court costs; notification of community service. Under the totality of the circumstances, the police officers' actions were not unreasonable. Appellant's filing of an affidavit of indigency did not prohibit the trial court from imposing court costs. Appellant was sentenced to a prison term; the trial court, therefore, was not required to notify appellant of the imposition of community service if appellant failed to pay those costs.Jones 3/9/2017
OC Lorain Fulton, L.P. v. Cleveland Bd. of Zoning Appeals 104561Administrative appeal; mootness; avoidance of constitutional questions. City's administrative appeal of trial court decision that reversed a board of zoning appeals' decision to deny a conditional use permit was rendered moot when the property at issue was sold while the appeal was pending and the new owner would not be using the property consistent with the request for the conditional use permit. Trial court should avoid addressing constitutional questions if unnecessary to resolve conflict.Stewart 3/9/2017
Garden v. Langermeier 104674Although an order of distribution of funds from a trust was issued in a special proceeding by the probate court, it was not a final order because it did not affect a substantial right. The trust beneficiaries attempting to appeal from the order of distribution had unresolved causes of action in the same case that raised similar claims about the conduct of the trustee, such that an immediate appeal was premature.Stewart 3/9/2017
State v. M.R. 104712Expungement; trial court; R.C. 2953.32(B); hearing; fail to hold; notice; reversed and remanded; substantial interest, journal entry; eligibility; waiver; invited error; record. The trial court erred by ruling on a motion for expungement filed pursuant to R.C. 2953.32 without first holding a formal hearing.Gallagher 3/9/2017
In re N.V. 104738Juvenile court; permanent custody; legal custody; best interest of child; final appealable order; judicial notice. Judgment is reversed. The juvenile is returned to the temporary custody of CCDCFS, and the matter is remanded for an adjudicatory hearing in light of juvenile's sibling's case. Taking into account the juvenile court's most recent order continuing temporary custody in the sibling's case and finding residence in Mother's home contrary to sibling's best interest, we reverse the juvenile court's order awarding legal custody of juvenile to Mother and terminating temporary custody of CCDCFS. Less than one month ago, the juvenile court determined that Mother is not able to directly care for sibling, who is A.V. The court further ordered that the sibling remain in temporary custody. We have an obligation to defer to the trial court's most recent order pertaining to a sibling who is only one year older than the juvenile.Kilbane 3/9/2017
Hook v. Collins 104825Default judgment; motion; vacate; service; presumption; ordinary mail; abuse of discretion; Civ.R. 4; residence; Civ.R. 60(B); personal jurisdiction; affidavit; address. The trial court did not abuse its discretion in granting defendant's motion to vacate the default judgment. Defendant sufficiently rebutted the presumption of valid service by demonstrating that he did not reside or otherwise receive mail at the address to which the Civ.R. 4.6(D) regular mail service was addressed.Gallagher 3/9/2017
State v. Black 104830Res judicata; agreed sentence. The trial court did not err when it denied defendant's motion to vacate judgment based on fraud because the issue was barred by res judicata. Further, even if the issue was not barred by res judicata, the trial court properly sentenced defendant to consecutive sentences because it was an agreed-upon sentence.Boyle 3/9/2017
MADFAN, Inc. v. Makris 103655Fraud; conspiracy; measure of damages; corporate worth. Defendant was entitled to a directed verdict after plaintiffs failed to present evidence of damages on the tort claims at trial, and the judgment is reversed.Gallagher 3/9/2017
Humphries v. Pinkney 105308Habeas corpus; sentencing error; adequate remedy of law; defective petition; R.C. 2725.04(A) and (C). Petitioner's request for habeas corpus on the grounds that the trial court improperly imposed a jail sentence was denied because sentencing errors are not cognizable in habeas corpus; petitioner has an adequate remedy at law to challenge the legality of his sentence by way of direct appeal. The failure to comply with R.C. 2725.04(A) and (C) also supported the denial of the petition and the grant of respondent's motion for summary judgment.Laster Mays 3/8/2017
State v. Robinson 85207App.R. 26(B); untimely; no good cause. Applicant failed to demonstrate good cause for failing to file his application to reopen under App.R. 26(B) within the 90-day deadline. Applicant's claim that appellate counsel was ineffective did not constitute "good cause" to allow an application filed 10 years beyond the deadline.McCormack 3/8/2017
State v. Black 102586App.R. 26(B); application to reopen, ineffective assistance of appellate counsel, guilty plea, waiver, insufficient argument, list of arguments, res judicata, and prejudice. The court denied the App.R. 26(B) application to reopen on the grounds of ineffective assistance of appellate counsel, because the mere listing of arguments is insufficient to establish the claim. The applicant waived many, if not all of his arguments, by pleading guilty. Res judicata barred the arguments related to merge and allied offenses. Applicant failed to establish prejudice.Gallagher 3/7/2017
State v. Durham 103352 & 103382App.R. 26(B) application for reopening, preindictment delay, testimony of emergency room nurse, Confrontation Clause, Evid.R. 803(4) and medical treatment/diagnosis. The appellant has filed a timely application for reopening pursuant to App.R. 26(B). In support of his application for reopening, appellant argues that he was prejudiced by the failure of appellate counsel to argue on appeal the issues of preindictment delay and violation of the Confrontation Clause. We find that the appellant was not prejudiced by the conduct of appellate counsel and that the outcome of his appeal would not have been different had appellate counsel argued on appeal the issues of preindictment delay and violation of the Confrontation Clause. The appellant has failed to establish the existence of any harm that occurred as a result of preindictment delay. In addition, the admission at trial of the statements made by a rape victim, to medical personnel, did not violate the Confrontation Clause, because the statements were made primarily for the purpose of medical examination and treatment. In addition, the statements made by the rape victim, to medical personnel, were admissible at trial pursuant to Evid.R. 803(4).Jones 3/7/2017