03/23/2017


Case Caption

Case No.Topics and IssuesAuthorDecided
Dickson & Campbell, L.L.C. v. Marshall 104133Summary judgment; lawyer-client contracts; fraud; theft; conversion; embezzlement. Appellee failed to provide evidence that appellant made a representation to appellee to establish that fraud was committed on appellee. Appellant failed to present any evidence to create a genuine issue of material fact to overcome appellee's motion for summary judgment on appellee's claims of theft, conversion and embezzlement. The trial court erred where it awarded damages to appellee without conducting a hearing where appellant could have been heard on the issue.Jones 3/23/2017
Hubbard v. Charter One Bank 104146Summary judgment; default judgment; Consumer Sales Practices Act; R.C. Chapter 1345; fraud; negligence; breach of fiduciary duty; agency; respondeat superior; credit repair services; financial institution; service; Civ.R. 4; failure to serve within one year; statute of limitations; waiver of defenses; Civ.R. 12(B)(6); pleading; Civ.R. 56(C) compliant evidence; deposition testimony. The court incorrectly ruled that the statute of limitations precluded suit when that defense was waived when not presented in an answer or other pleading as directed by Civ.R. 8(C). However, a financial institution was still entitled to summary judgment where the evidence presented indicated that a third party was responsible for any loss suffered by the appellant. The trial court properly dismissed claims against the remaining parties where proper service was not accomplished within one year.Celebrezze 3/23/2017
State v. Rodano 104176Aggravated robbery; insurance fraud; grand jury; sufficiency of evidence. Although the ATF agent could not determine the cause of the fire that erupted at appellant's house as being accidental or incendiary, the state's evidence showed that, prior to the fire, appellant made incriminating statements to three individuals hinting at a plot of arson for insurance money. The state produced sufficient evidence, although circumstantial, to support appellant's convictions of aggravated arson.McCormack 3/23/2017
Wisniewshi v. Marek Builders, Inc. 104197Arbitration, Ohio Home Solicitation Sales Act. Trial court erred in enforcing an arbitration provision contained within a contract that was cancelled pursuant to the Ohio Home Solicitation Sales Act, R.C. 1345.23(C).Gallagher 3/23/2017
State v. Pierce 104275Nonsupport of dependents; R.C. 2919.21; sufficiency; manifest weight; restitution; child support; R.C. 2929.18. Appellant's conviction for nonsupport of dependents is supported by sufficient evidence and is not against the manifest weight of the evidence. The trial court did not err by ordering appellant to pay the total child support arrearage as a condition of community control.Celebrezze 3/23/2017
In re L.D. 104325R.C. 2151.414/permanent custody; best interest of the child; manifest weight. The trial court's determination that CCDCFS made reasonable efforts to reunite Mother and children was proper. The trial court considered factors under R.C. 2151.414 for abandonment, lack of action, best interest of the children and custodial history. The trial court's judgment of permanent custody to CCDCFS was not against the manifest weight of the evidence. Appellant's argument that the trial court committed reversible error fails where the record supports that the trial court's determination was in the best interest of the children.Jones 3/23/2017
Kanter v. Cleveland Hts. 104375Home Rule Amendment; chartered municipality; Ohio's Sunshine Laws; Ohio's Open Meetings Act; minutes of meetings; R.C. 121.22; Cleveland Heights Codified Ordinances 107.04; Civ.R. 12(B)(6); motion to dismiss. The trial court did not err when it dismissed appellant's complaint under R.C. 121.22 because Cleveland Heights is a chartered municipality. Under the Home Rule Amendment, municipalities have the power over matters of local, self-government. Whether a chartered municipality chooses to keep minutes of committee meetings is a matter of local self-government. Therefore, Cleveland Heights could enact an ordinance that stated recording minutes of committee meetings was discretionary.Boyle 3/23/2017
Lakewood v. Lane 104534Crim.R. 11, guilty plea; waiver of counsel; Crim.R. 44. The trial court substantially complied with Crim.R. 11(E) because it advised the appellant of the effects of his no contest plea. The trial did not err in sentencing the appellant and his waiver of counsel was valid in accordance with Crim.R. 44(B) and (C).Laster Mays 3/23/2017
State v. Yancey 104587Allied Offenses; Merge; Different Victims; Aggravated Burglary; Theft. Trial court did not err in not merging defendant's aggravated burglary and theft offenses as allied offenses because the offenses were committed separately and the victims of each offense were different.Keough 3/23/2017
State v. Burrell 104593Consecutive sentences; R.C. 2929.14(C)(4); R.C. 2953.08; contrary to law. The trial court did not err by imposing consecutive sentences. The matter is remanded to the trial court for the limited purpose of issuing a nunc pro tunc journal entry incorporating the court's consecutive sentence findings.Celebrezze 3/23/2017
Chavalia v. Cleveland 104608 & 104621Wrongful death claim; denial of motion for summary judgment; failure to promptly dispatch police officer to respond to 911 call; statutory immunity; exception to immunity; R.C. 2744.02(B)(2); governmental function; R.C. 2744.01(C)(1)-(2); proprietary function; R.C. 2744.01(G)(1)-(2); R.C. 2744.03(A)(6)(b); wanton; reckless; R.C. 2744.02(B)(5); liability expressly imposed by statute; former R.C. 4931.49(B); giving emergency instructions through a 911 system - Trial court did not err in denying dispatchers' motion for summary judgment on immunity grounds. Genuine issue of material fact existed as to whether dispatchers acted wantonly or recklessly in failing to dispatch a zone car to investigate a 911 call involving the potential for serious physical harm for nearly two hours. Trial court erred in denying city's motion for summary judgment on immunity grounds. Exception to immunity set forth in R.C. 2744.02(B)(2) did not apply because police dispatching is a governmental function. Former R.C. 4931.49(B) did not apply because wrongful death claim did not arise from the issuance of emergency instructions through a 911 system.Gallagher 3/23/2017
State v. McElroy 104639, 104640, 104641Crim.R. 11(C)(2)(c); privilege against self-incrimination; strict compliance; Crim.R. 32.1; hearing; postsentence withdrawal of guilty pleas; manifest injustice; ineffective assistance of counsel; prejudice; community-based correctional facility; double jeopardy; multiple punishments; legitimate expectation of finality; error in sentencing journal entry; plea agreement; nunc pro tunc; restitution; ability to pay - Trial court did not violate Crim.R. 11(C)(2)(c) with respect to privilege against self-incrimination where it advised defendant that he had the right not to testify at the time of trial and defendant indicated that he understood that right. Trial court did not abuse its discretion in failing to hold a hearing to determine whether defendant should be permitted to withdraw his guilty pleas based on defendant's and defense counsel's comments following sentencing. Defendant was not prejudiced by any alleged ineffective assistance of counsel where he did not identify any facts that would support the conclusion that withdrawal of his pleas was necessary to correct a manifest injustice. Poorly worded journal entry relating to referral to community-based correctional facility entered before sentencing hearing did not give rise to a legitimate expectation of finality to invoke double jeopardy. Trial court erred in imposing a sentence in its sentencing journal entry that differed from that imposed at the sentencing hearing. Trial court erred in ordering restitution that was different in amount from that agreed to under plea agreement.Gallagher 3/23/2017
Carr v. Cuyahoga Cty. Fiscal Officer 104652Board of revision; R.C. 5717.05; abuse of discretion; sales comparison approach; market valuation. The trial court abused its discretion by reversing the board of revision's valuation of the homeowner's property based on the homeowner's reliance on the sales prices of nearby properties to the exclusion of all variables affecting the market value of a property. The listing of sales prices of other properties in and of itself provides no guidance in determining the value of the homeowner's property for the purpose of independently weighing and evaluating the evidence presented to make a determination regarding the valuation of a property under R.C. 5717.05.Gallagher 3/23/2017
State v. Jones 104667Postconviction Relief; Final Appealable Order; Consecutive Sentences Resentencing. Appeal dismissed due to lack of a final appealable order where trial court denied appellant's timely petition for postconviction relief without issuing findings of fact pursuant to R.C. 2953.21(C).Gallagher 3/23/2017
Portee v. Cleveland Clinic Found. 104693Statute of limitations; savings statute; federal court. Court erred by granting summary judgment to defendant based on the statute of limitations in this medical malpractice case. The savings statute, R.C. 2305.19, applied to an action timely filed in federal court, which was dismissed other than upon the merits, then refiled in state court within one year.Blackmon 3/23/2017
Jenkins v. Cleveland 104768Petition for return of property; R.C. 2981.03; motion to dismiss; Civ.R. 12(B)(6); forfeiture; forfeited property; 18 U.S.C. 981; due process. There is no evidence in the record supporting appellees' assertion that appellant's property had been transferred to the federal government pursuant to a federal warrant. Accordingly, the trial court erred by dismissing appellant's petition for the return of property without holding a hearing.Celebrezze 3/23/2017
Internatl. Union of Operating Engineers, Local 18 v. Laborers' Internatl. Union of N. Am., Local 310 104774Motion for attorney fees; Civ.R. 11; R.C. 2323.51; frivolous conduct; abuse of discretion. The trial court did not abuse its discretion when it denied appellant's motion for attorney fees filed pursuant to Civ.R. 11 and R.C. 2323.51. An attorney's filing of a second complaint was not frivolous where counsel amended the complaint in an attempt to cure a jurisdictional defect in order to preclude the application of res judicata.McCormack 3/23/2017
In re J.R. 105007R.C. 2151.414; permanent custody; best interests; "12 of 22 rule." The trial court's judgment granting permanent custody to the agency was supported by clear and convincing evidence. The child had been in the temporary custody of the agency for more than 12 months of a consecutive 22-month period. The child could not be placed or should not be placed with mother within a reasonable time because mother's cognitive delays prevented her from understanding and managing her child's special medical needs. It was in the child's best interests to be placed in the permanent custody of the agency.Boyle 3/23/2017
State v. Coleman 105195Anders Brief; frivolous appeal. Appellate counsel's motion to withdraw is granted on grounds that an appeal would be frivolous.Stewart 3/23/2017
State ex rel. Debardelaben v. Matia 105267Mandamus, petition to vacate conviction or sentence, findings of fact and conclusions of law, moot. The relator has filed a complaint for a writ of mandamus through which he seeks an order to compel the trial court to issue findings of fact and conclusions of law with regard to a petition to vacate conviction or sentence. The request for a writ of mandamus is moot. The trial court has issued findings of fact and conclusions of law.Kilbane 3/21/2017
State ex rel. Littlejohn v. Saffold 105292Mandamus; petition for judicial release; and mootness. Mandamus petition to compel judge to rule on petition for judicial release was rendered moot by a journal entry denying the petition.Gallagher 3/21/2017
State ex rel. Philbin v. Cleveland 104106Mandamus, public records, R.C. 149.43, exempt records, redacted records, show cause order, contempt. The Ohio Public Records Act, R.C. 149.43, must be construed liberally in favor of broad public access, and any doubt must be resolved in favor of disclosure. The respondents were provided with an opportunity to address the claims of the relator that records were improperly redacted and that not all of the requested records were provided as agreed upon through mediation. The respondents have failed to provide any response to this court's show cause order that allowed them to demonstrate that the provided records were properly redacted and that all requested records were provided. Accordingly, we grant a writ of mandamus on behalf of the relator and order that the respondents provide the relator with unredacted copies of all requested records. The failure to provide the unredacted records may result in a finding of contempt on the part of the respondents.Blackmon 3/17/2017