04/27/2017


Case Caption

Case No.Topics and IssuesAuthorDecided
Richard C. Alkire Co., L.P.A. v. Alsfelder 104153Legal malpractice; complaint for attorney fees; motion for summary judgment; expert report. Judgment affirmed. The trial court properly awarded summary judgment to the plaintiff-law firm when the defendant failed to produce an expert report. Without any affirmative evidence, the defendant could not establish the elements of his legal malpractice counterclaim.Kilbane 4/27/2017
State v. Pettry 104519R.C. 2901.13(A)(3)(a)/statute of limitations/rape; John Doe/DNA indictment. Dismissal of the indictment against appellee was proper. The statute of limitations expired prior to amendment of the indictment; appellee's identity was known prior to expiration of the statute of limitations, and a DNA match was made prior to the expiration of the statute of limitations.Jones 4/27/2017
State v. Mauldin 104540Moot; dismiss; misdemeanor; probation terminated. Appeal dismissed. Appeal is moot because during the pendency of the appeal, the trial court terminated appellant's probation and placed him on postrelease control. The trial court ordered that appellant be released.Kilbane 4/27/2017
Lang v. Beachwood Pointe Care Ctr. 104691Directed verdict; punitive damages; attorney fees; litigation expenses; malice; insufficient evidence. Court erred by denying defendant's motion for directed verdict on issue of punitive damages in nursing home negligence case, because plaintiff failed to present sufficient evidence of malice. Additionally, because punitive damages were improperly awarded, the court also erred by awarding attorney fees and, in part, litigation expenses.Blackmon 4/27/2017
CitiMortgage, Inc. v. Brown 104702Foreclosure; Civ.R. 60(B); meritorious claim or defense; lis pendens. The trial court properly denied the motion for relief from judgment where the purported meritorious claim or defense was that the proper party in interest was not included in the suit where a defendant transferred title property that was the subject of a foreclosure action to a third party during the pendency of the action. The doctrine of lis pendens disposed of such a claim.Celebrezze 4/27/2017
Sanderfer v. Cuyahoga Metro. Hous. Auth. 104720Civ.R. 56/summary judgment. Appellant's counsel failed to follow the trial court's order; the trial court considered the evidence in the case. The trial court's granting of summary judgment was sufficiently supported.Jones 4/27/2017
State v. Jimenez 104735Plain error; preliminary hearing; invited error; violation; community control; sentencing hearing; R.C. 2929.11; R.C. 2929.12. Defendant expressly conceded at a preliminary hearing that a violation of community control sanctions occurred and, therefore, waived his right to written notice before a revocation hearing, but the trial court erred by imposing a sentencing upon the violation without considering the sentencing factors under R.C. 2929.12 and 2929.11.Gallagher 4/27/2017
State v. Miller 104747Sexual predator; clear and convincing evidence; due process; equal protection; sex offender; sexual battery; R.C. 2907.03(A)(1); Megan's Law; former R.C. Chapter 2950; manifest weight; plain error; Crim.R. 52. The trial court conducted an adequate sex offender classification hearing. The trial court's sexual predator classification is not against the manifest weight of the evidence and does not violate appellant's constitutional rights to due process or equal protection.Celebrezze 4/27/2017
Love v. Crestmont Cadillac 104807Stay; arbitration; vehicle; purchase; Ohio Consumer Sales Practices Act; CSPA; negligent misrepresentation; Magnusson Moss Warranty Act; unconscionable; procedural; substantive; adhesion; unequal bargaining; public policy; due process protocol; R.C. 2711.02; hearing; discretion. Trial court's decision to stay case pending arbitration was upheld. All claims surrounding the purchase of a vehicle fell within the scope of the arbitration agreement, which was neither procedurally or substantively unconscionable. A trial court has discretion to hold a hearing on the motion to stay pursuant to R.C. 2711.02, and the court did not abuse that discretion where it ordered supplemental briefing and had an adequate record upon which to make a determination without a hearing.Gallagher 4/27/2017
E. Cleveland Firefighters, IAFF 500, AFL-CIO v. E. Cleveland 104948Civ.R. 65; preliminary injunction; contempt; sanctions; final appealable order; jurisdiction; Civ.R. 12; Civ.R. 6; reconsideration; interlocutory order; R.C. 2323.51. The trial court did not err in striking a belated answer filed without leave of court, by granting sanctions based on the repeated filing of the same arguments, or by imposing sanctions upon finding the defendant in contempt for failure to adhere to the terms of the preliminary injunction.Gallagher 4/27/2017
State v. Holley 104955 Jail-time credit, separate cases. Offender not entitled to jail-time credit for any period of incarceration in another county on unrelated offenses.Keough 4/27/2017
Ohioans for Concealed Carry, Inc. v. Cleveland 104970Home Rule Amendment; firearms; concealed carry; ordinances; R.C. 9.68; general law; conflict; uniformity; mirror; definitions; restriction; authorized; taxpayer action; R.C. 733.59; proxy; standing; mandamus; public records; R.C. 149.43(C); statute of limitations; R.C. 2305.07; reasonable attorney fees; hearing; summary judgment. Several Cleveland firearm ordinances were found unconstitutional because they contained unlawful definitions or otherwise conflicted with the general law of the state under R.C. 9.68 and related firearm statutes, which are intended to provide uniformity throughout the state. Those ordinances that mirrored state law were found constitutional. The matter was remanded to the trial court to conduct a hearing and award appellants costs and determine reasonable attorney fees pursuant to R.C. 9.68(B). Summary judgment on taxpayer action for lack of standing was affirmed because the taxpayer failed to submit a written request to the director of law as required by R.C. 733.59. The six-year statute of limitations under R.C. 2305.07 was found to apply to mandamus action for public records under R.C. 149.43(C).Gallagher 4/27/2017
Park Bldg. Condominium Assn. v. Howells & Howells Ents., L.L.C. 104993Dispute resolution provision; arbitration; motion to stay pending arbitration; de novo. The trial court did not err when it denied appellant's motion to stay proceedings pending arbitration because the claims were not subject to the Master Declaration's dispute resolution provision. The claims could be maintained without reference to the agreement containing the dispute resolution provision.Boyle 4/27/2017
In re V.V.F. 105010Permanent custody, best interest of the child. The trial court did not err in granting CCDCFS permanent custody of the children. The record was supported by clear and convincing evidence regarding allegations against the mother. The trial court's decision was consistent with R.C. 2151.414(B).Laster Mays 4/27/2017
Meisler v. Weinberg 105016Summary judgment; legal malpractice; trust; revokable; beneficiary; strict privity; standing; damages; estate; executor; benefit; genuine issue; lack of evidence. Attorney was entitled to summary judgment on a legal malpractice claim regarding preparation of a decedent's trust. Under Ohio's strict privity rule, potential beneficiaries under a will or trust have no right to sue for alleged mistakes arising from pre death estate planning matters. Appellant could not circumvent the strict privity rule under the guise of being the executor of the decedent's estate, where the claim was not being asserted for the benefit of the estate as a whole. Even assuming proper standing, there was a lack of evidence in the record to establish a legal malpractice claim.Gallagher 4/27/2017
In re J.H. 105073Parental rights; permanent custody; R.C. 2151.419; R.C. 2151.413; manifest weight; clear and convincing; R.C. 2151.414; case plan; best interest; substantial compliance. The trial court's judgment awarding custody of the two children to appellee, children services agency, was supported by clear and convincing evidence in the record. The trial court made the appropriate considerations under R.C. 2151.414, and the trial court's determinations are supported by sufficient competent, credible evidence in the record.Celebrezze 4/27/2017
State v. V.S. 105264R.C. 2953.31; R.C. 2953.36(A)(2); R.C. 4511.19(A)(1)(a), OVI, sealing record of conviction, hearing, multiple convictions, eligible offender. The trial court erred in failing to hold a hearing on appellant's application to seal a record of conviction. The state concedes the hearing error, but argues that appellant does not qualify as an eligible offender under the statute. Appellant's OVI conviction is excluded by R.C. 2953.36(A)(2); however, appellant is entitled to a hearing for consideration of whether relief is available for the remaining convictions.Laster Mays 4/27/2017
State v. Keith 104034Confrontation Clause; testimonial evidence; gang affiliation testimony; sufficiency of evidence; manifest weight of the evidence, aggravated murder; prior calculation and design. Judgment affirmed. The detective's testimony regarding the knowledge of the organizational chart and gang-member identification was not based on testimonial hearsay and was admissible because it was based on the detective's personal knowledge or observation of data collected in police databases. There is sufficient evidence to support an aggravated murder conviction because the strained relationship, the previous attempt to murder the victim, and defendant's actions on the night the victim was murdered all indicate a calculated decision to kill the victim. There was evidence of animosity between the defendant and the victim that triggered the killing. Also, the convictions are not against the manifest weight of the evidence.Kilbane 4/27/2017
State ex rel. Berry v. Cleveland 104060R.C. 149.43; Public Records; mediation; certification; zoning records; and mandamus. After the court had referred this public records mandamus action to mediation, which lasted most of a year and which allowed the City to explain the zoning process and why certain records were not produced, and after the disclosure of hundreds of pages of records, and after multiple certifications of the status of the case, the court dismissed the case as moot, because it was convinced that the city had provided the existing, requested records.Laster Mays 4/26/2017
Sunshine Ltd. Partnership v. C.A.S.T.L.E. High School, Inc. 104912Final appealable order; default judgment; damages hearing; jurisdiction. The trial court entered the purported final judgment while it was divested of jurisdiction because of a pending appeal, and therefore, there is no final appealable order. The case is dismissed for the want of jurisdiction.Gallagher 4/26/2017
State ex rel. Graham v. Gallagher 105348Mandamus; final, appealable order; and postrelease control. Mandamus would not issue to compel a trial judge to issue a final, appealable order, because the imposition of one term of postrelease control is proper when there are convictions for multiple counts.McCormack 4/25/2017
State ex rel. Hodges v. Cuyahoga Cty. Court of Common Pleas 105567Mandamus; motion to withdraw guilty plea; sua sponte dismissal; mootness. Relator sought a writ of mandamus to compel the court to rule on a motion to withdraw guilty plea, filed November 18, 2016. The trial court had ruled on a motion to withdraw guilty plea filed in March 2016 and supplemented in June. There was no filing for November 18, 2016. Thus, the court sua sponte dismissed the case.Gallagher 4/21/2017
State v. Cody 100797App.R. 26(B); ineffective assistance of appellate counsel; theft; money laundering; speedy trial; waiver and tolling; right to testify; right to self-representation; competency; hybrid representation; prejudice; speculation; incredible proffers; CIA defense; R.C. 2923.32; proportionate sentences; allied offenses; pretrial motions; privileged information; checks; and patient-physician privilege. Appellate counsel was not ineffective for failing to raise arguments concerning, inter alia, suppression of incredible evidence, defendant's decision to represent himself, defendant's competency, defendant's decision not to testify, speedy trial, allied offenses of theft and money laundering, imposition of fines and costs pursuant to R.C. 2923.32(B), patient-physician privilege, and propriety of sentence.Keough 4/21/2017