06/15/2017


Case Caption

Case No.Topics and IssuesAuthorDecided
Tomaydo-Tomahhdo, L.L.C. v. Vozary 104446Trade secrets; menus; recipes; confidentiality agreement; agreement not to compete. Former employees did not misappropriate trade secrets by opening competing business that used similar menu items to restaurant where they had previously worked because there were significant differences in how those menu items were prepared and the menu items were common to many restaurants. Plaintiffs could not avoid summary judgment because they could not prove defendants had possession of, or used, plaintiffs' customer database.Stewart 6/15/2017
State v. Yarochovitch 104572Guilty plea; Crim.R. 11; knowing; intelligent; voluntary; maximum penalty; substantial compliance; complete failure; prejudice; deportation; mandatory period of postrelease control. The trial court failed to advise appellant during the plea colloquy that he would be subject to postrelease control. Appellant's guilty pleas were therefore not entered knowingly, intelligently, and voluntarily.Celebrezze 6/15/2017
State v. Parker 104610R.C. 2953.08; R.C. 2929.13; fourth-degree felony; prison; mandatory; discretionary; burglary; assault; physical harm; findings. Although trial court's reason for imposing a prison term for a fourth-degree felony instead of presumptive mandatory community control sanctions was erroneous, there was no finding that the record did not support trial court's discretion to impose a prison sentence when the defendant caused physical harm to another while committing the offense.Stewart 6/15/2017
State v. Nunez 104623Domestic violence; hearsay; other acts evidence; prior convictions; impeachment; surveillance video; recorded jail conversations; medical records; written statement; prior recollection recorded; limiting instruction; character evidence; manifest weight of the evidence. Trial court did not abuse its discretion by admitting evidence regarding defendant's prior acts of domestic violence where the evidence was admissible under Evid.R. 404(B) to prove identity.Gallagher 6/15/2017
State v. Lewis 104637Guilty plea; sentence; merger; allied offense; plain error; consecutive sentences; disproportionate; R.C. 2929.11; R.C. 2929.12; R.C. 2929.14; mental health issues; PSI; ineffective assistance of counsel. Judgment affirmed. The aggravated robbery offenses are not allied and are not subject to merger because the counts involved separate victims. Appellant's consecutive sentence was not contrary to law as the trial court set forth all of the necessary findings under R.C. 2929.14(C)(4) to impose consecutive sentences and gave ample reasoning to support its findings under R.C. 2929.11 and 2929.12. Appellant did not satisfy his burden in proving that defense counsel's performance was deficient and that, but for this deficiency, he would not have pled guilty.Kilbane 6/15/2017
Konarzewski v. Ganley, Inc. 104681Class action; certification; Ohio Consumer Sales Practices Act; vehicle; purchaser; R.C. 1345.09(B); form documents; actual damages; Civ.R. 23(B)(3); fact of damage; common proof; individualized; inquiry; predominance; identifiable class; definition; class members; reasonable effort. Trial court abused its discretion in granting class certification under Civ.R. 23(B)(3) for a claim under the Ohio Consumer Sales Practices Act when there was no common proof of "fact of damage" and the question of whether a particular vehicle purchaser suffered actual damage as a result of the use of the two form documents required individualized inquiry. Additionally, class certification was improper because the class definition did not permit class members to be identified without expending more than a reasonable effort.Gallagher 6/15/2017
State v. Beckwith 104683Menacing by stalking; failure to verify address; R.C. 2950.99. Appellant's conviction of menacing by stalking is supported by sufficient evidence. His sentence for a failure to verify his address is reversed because the trial court improperly used a prior conviction of attempted failure to provide notice of change of address to enhance his penalty under R.C. 2950.99.McCormack 6/15/2017
State v. Lash 104725Sufficiency; R.C. 2941.25/allied offenses; consecutive sentences. Testimony and evidence presented at trial was sufficient to meet each element of the offense of kidnapping. Appellant and his codefendants acted in concert in removing identifying information from items purchased expressly for their planned crime; it was likely that the police would be contacted once they committed their crime; and that an investigation would proceed following their crime. There was sufficient evidence to support appellant's conviction for tampering with evidence. Appellant's kidnapping and aggravated robbery offenses involved separate victims and were executed with separate animus and did not qualify to be merged as allied offenses. The trial court made the required findings on the record in sentencing appellant. However, an incorrect reason under R.C. 2929.14(C)(4) was placed in the trial court's journal entry. The case is remanded to the trial court for the purpose of a nunc pro tunc entry to include the propr sentencing findings for consecutive sentences.Jones 6/15/2017
State v. Lewis 104909Motion to suppress; warrantless search; Crim.R 29/motion for acquittal; sufficiency; manifest weight; R.C. 2929.14(C)(1)(a)/sentencing; R.C. 2953.08(G)(2)/modification of sentence. In the normal process of preparing a vehicle for tow and according to police policy, the officer's search under the hood of the vehicle was for inventory purposes, not investigative. The trial court did not err in denying appellant's motion to suppress. Appellant admitted to police that the gun found under the hood of the vehicle was his and it was determined that that location was in close enough proximity of appellant for retrieval; appellant also admitted that the drugs found in the car belonged to him; therefore, there was sufficient evidence to meet the firearm specifications and that appellant was trafficking in drugs, and that the convictions for these offenses were not against the manifest weight of the evidence. It was error where the trial court sentenced appellant to a three-year prison term. Under R.C. 2929.14( C)(1)(a), appellant's mandatory sentence for the firearm specification must run prior to and consecutive to the underlying felony prison term. Accordingly, under R.C. 2953.08(G)(2), appellant's current sentence is contrary to law and is vacated and remanded to the trial court for resentencing.Jones 6/15/2017
Marshall v. Cooper & Elliott, L.L.C. 104934R.C. 2323.51; frivolous conduct; decision on the merits; voluntary dismissal; failure to file transcript; presumption of regularity; attorney fees reasonably incurred; abuse of discretion. Trial court did not err in determining that third-party plaintiff and his attorney engaged in frivolous conduct under R.C. 2323.51 notwithstanding that, due to third-party plaintiff's voluntary dismissal of his claims, the claims had not been decided on their merits. Because third-party plaintiff failed to file a transcript of the hearing on the motion for sanctions under R.C. 2323.51, appellate court had to presume the regularity of the trial court's proceedings. Trial court did not abuse its discretion in declining to award third-party defendant any attorney fees under R.C. 2323.51 where it determined that third-party defendant Dolan failed to establish that he had a legal obligation to pay any attorney fees and, therefore, did not incur attorney fees within the meaning of R.C. 2323.51(B)(3).Gallagher 6/15/2017
State v. May 104947Juvenile; sexual predator classification; due process; equal protection. Sexual predator classification for offender who committed sexual offenses as a juvenile did not violate due process or equal protection.Stewart 6/15/2017
In re C.B. 105027Best interest of child; clear and convincing; R.C. 2151.414. Termination of parental rights affirmed. The trial court properly considered all factors under R.C. 2151.414(D) in determining that a grant of permanent custody of twin boys to Cuyahoga County Department of Children and Family Services ("CCDCFS") was in the children's best interest. The trial court's determination that the twin boys should not be placed with their mother was supported by clear and convincing evidence.Kilbane 6/15/2017
Johnson v. Cuyahoga Cty. 105040Civ.R. 41(A)/voluntary dismissal; R.C. 4123.512(D)/employee consent to file motion to dismiss an appeal. The trial court did not err in granting appellee's motion to dismiss the case. This court has previously found that amended R.C. 4123.512(D) is in violation of Ohio Constitution, Article IV, Section 5(B) because it is in contravention of Civ.R. 41(A)(1)(a).Jones 6/15/2017
Burke v. Giant Eagle, Inc. 105058Premises liability; business invitee; slip and fall; constructive notice; actual notice; Civ.R. 56; summary judgment; length of time hazard existed. The trial court properly granted summary judgment in favor of a business where an invitee that slipped and fell on a hazard within the business failed to come forward with any evidence that the business created the hazard, or had actual or constructive knowledge of the hazard. The invitee failed to offer any evidence about the length of time the hazard was present such that knowledge could be imputed to the business.Celebrezze 6/15/2017
State v. Holiday 105070Consecutive sentences, findings, R.C. 2929.14(C)(4). The trial court made the appropriate consecutive sentence findings and engaged in the analysis required by R.C. 2929.14(C)(4). However, the sentencing entry should only contain the findings actually made at the sentencing hearing. This error can be corrected nunc pro tunc.Keough 6/15/2017
State v. Whaley 105298Frivolous appeal; Anders v. California; Crim.R.11(C)/knowing, intelligent, voluntary plea. The trial court engaged in a complete CrimR. 11 colloquy with appellant. Appellant provided no evidence that the plea was deficient.Jones 6/15/2017
Katz v. Katz 103715R.C. 3109.04(F), custody, best interests of the children, R.C. 3109.051, parenting time, Sup.R. 48, guardian ad litem and attorney fees, R.C. 3105.18, spousal support, R.C. 3119.01(C), imputed income, R.C. 3119.82, dependent tax exemptions, R.C. 3105.73, attorney fees, R.C. 3105.171, date of marriage termination, marital assets and liabilities, sua sponte nunc pro tunc. The trial court did not abuse its discretion in determining that awarding sole custody and child support to appellee was in the best interests of the children, nor did it abuse its discretion in denying spousal support to the parties, or in allocating assets, liabilities, and dependent exemptions. The trial court properly ordered that appellant pay additional fees to the guardian ad litem and the guardian ad litem's attorney where the fees were incurred due to unilateral acts of appellant. The de facto marriage termination date was not an abuse of discretion where the proceedings were prolonged and the parties lived separate and apart for two years prior to the last hearing date. The trial court's sua sponte nunc pro tunc entry was properly entered to reflect the trial court's actual judgment and did not constitute a substantive change.Laster Mays 6/15/2017
State v. Ledbetter 104077App.R. 26(B) application for reopening, ineffective assistance of trial counsel, R.C. 2941.25 merger of allied offenses at sentencing, no duty to advise defendant of possible merger of allied offenses at guilty plea hearing, mandatory fine, affidavit of indigency, waiver of mandatory fine. The applicant, through his initial proposed assignment of error in support of his App.R. 26(B) application for reopening has failed to identify any prejudicial conduct on the part of trial counsel. The simple statement that appellate counsel failed to raise a "dead bang winner" does not identify any deficient conduct on the part of appellate counsel. In addition, there exists no duty, on the part of a trial court, to merge allied offenses of similar import at the time of a guilty plea hearing. R.C. 2941.25 provides that the merger of allied offenses is a sentencing question. Finally, the trial court is required to impose a mandatory fine unless an affidavit of indigency is filed and the trial court determines that the defendant is indigent and unable to pay the mandatory fine. Failure to file the affidavit of indigency constitutes ineffective assistance of trial counsel only if the record demonstrates that there exists a reasonable probability that the defendant would have found indigent and unable to pay the mandatory fine.Celebrezze 6/14/2017
Cruz v. Pinkney 105454Habeas corpus; bail; denial of bail; pleading deficiencies; failure to notarize; adequate remedy at law; R.C. 2725.04; R.C. 2969.25; and R.C. 2937.222(D). The court denied the petition for a writ of habeas corpus, because he did not include the cause of commitment with the actual journal entries and because the required affidavits were not notarized. The petitioner was also pursuing an adequate remedy at law pursuant to R.C. 2937.222(D).Celebrezze 6/14/2017