08/10/2017


Case Caption

Case No.Topics and IssuesAuthorDecided
Dueck v. Clifton Club Co. 103868 & 103888R.C. Chapter 2721, declaratory judgment, R.C. Chapters 5801-5811, Ohio Trust Code, Uniform Trust Code, trust, beneficiary, breach of fiduciary duty, impartiality, remedies. Members of the incorporated social club were not direct legal beneficiaries under a 1912 Trust Deed vesting beneficiary status in community lot owners. The Trust Deed interpreted using basic contract principles to determine settlor's intent; however, determination of scope of derivative membership interest subject to extrinsic evidence. Trustees breached fiduciary duties of impartiality and failure to provide information. Reversed and remanded.Laster Mays 8/10/2017
State v. Young 104627Preindictment delay; statute of limitations; John Doe indictment; amendment of indictment; speedy trial; rape. Judgment affirmed. The record demonstrates that law enforcement used reasonable diligence in its attempts to identify the assailant once it received notice that there was a match on the rape kit. The applicable statute of limitations period is 20 years for rape. Defendant's only claim is that he was unable to find an alibi at the time of the rape. The evidence, however, reveals that defendant was with the victim at that time, given that his DNA was found in the victim's rape kit. Since defendant has the burden of presenting evidence of substantial prejudice and has put forth no evidence, the trial court did not err when it denied his motion to dismiss for preindictment delay. If the defendant is not arrested for the offense, speedy trial time begins on the day he is served with the indictment. If a capias must be issued for the accused, speedy trial time is tolled for this time period.Kilbane 8/10/2017
Gill v. Guru Gobind Singh Sikh Soc. of Cleveland 104634Declaratory judgment; bench trial; manifest weight of the evidence; res judicata; law of the case doctrine. The trial court's judgment upholding the 2007 Amendments to the 1992 Constitution of the Guru Gobind Singh Sikh Society of Cleveland was not against the manifest weight of the evidence. Appellants waited approximately eight years to raise any issues with the 2007 Amendments. And the delay occurred after several Cuyahoga County trial court judgments rendered the 2007 Amendments binding on the Society and after our decision that found that the 2007 Amendments had been "ratified and approved." Therefore, res judicata and the law of the case doctrine barred appellants' claim.Boyle 8/10/2017
State v. Phillips 104810Crim.R. 33; motion for leave; motion for new trial; newly discovered evidence; unavoidably prevented from discovering the evidence. The trial court erred when it denied defendant's motion for leave to file a motion for new trial because the defendant set forth affidavits attached to his motion that established by clear and convincing proof that he was unavoidably prevented from discovering the new evidence.Boyle 8/10/2017
JP Morgan Chase Bank v. Stevens 104835Foreclosure; summary judgment; expert testimony; Evid.R. 702; standing; holder of the note; assignment of mortgage. The trial court did not err in granting summary judgment in favor of Chase Bank. The bank provided evidence it was entitled to enforce the note and there were no genuine issues of material fact concerning its standing to commence foreclosure. The trial court did not abuse its discretion in excluding the testimony of Stevens's proffered experts. Stevens failed to meet his reciprocal burden to set forth specific facts demonstrating a genuine issue of material fact, and he had no standing to contest the assignment of the note and mortgage to Chase.McCormack 8/10/2017
Bank of Am. v. Williams 104886United States Bankruptcy Code, Title 11 U.S.C., automatic stay 11 U.S.C. 362, equitable stay exception, lis pendens, R.C. 2703.26, res judicata. The trial court did not err in denying appellant's motion to stay the confirmation of sale in a foreclosure action. Transfer of partial ownership of the property to appellant's family member three years after the action was filed and one year after the judgment of foreclosure was governed by the doctrine of lis pendens, and the family member attempts to stay the sale by filing a petition of bankruptcy was properly denied. In addition, the bankruptcy petition was dismissed prior to the confirmation of sale decree, and the repetitive bankruptcy petition filings are sufficient to invoke the equitable exception doctrine to the automatic stay provision. Appellant's challenge to the underlying foreclosure is barred by the doctrine of res judicata.Laster Mays 8/10/2017
State v. Jackson 104991Consecutive sentences; findings. Appellant's consecutive sentences are affirmed as this court is able to discern that the trial court engaged in the correct analysis under R.C. 2929.14(C) and to determine that the record contains evidence regarding appellant's lengthy and extensive criminal history to support the trial court's consecutive findings. The case, however, is remanded to the trial court for the trial court to issue a new sentencing journal entry, nunc pro tunc, to incorporate into the journal entry the statutory findings made by the trial court at the sentencing hearing.McCormack 8/10/2017
State v. Bell 105000Petition for postconviction relief; ineffective assistance of counsel; failure to investigate; hearing. Trial court erred in denying defendant's petition for postconviction relief without a hearing where affidavits attached to defendant's petition demonstrated that counsel failed to adequately investigate the defense theory of the case and introduce evidence supporting that theory.Keough 8/10/2017
Ditech Fin., L.L.C. v. McCurry 105005Foreclosure; standing; real party interest; moot; property sold; stay; affidavit; Civ.R. 56(E). Judgment affirmed. Plaintiff attached several documents to its complaint, demonstrating that it had standing to invoke the trial court's jurisdiction, including an affidavit compliant with Civ.R. 56(E). Plaintiff had possession of the note, which was payable to bearer. Furthermore, the bank's affidavit sufficiently authenticated the loan documents submitted in support of its motion for summary judgment, and satisfied its burden of establishing the amount due on the note.Kilbane 8/10/2017
Barton v. Cuyahoga Cty. 105008Motion to dismiss; Civ.R. 12(B)(6); R.C. Chapter 2744; Political Subdivision Tort Liability; de novo. The trial court did not err when it denied appellants' motion to dismiss pursuant to Civ.R. 12(B)(6). Taking the allegations in the first amended complaint as true and construing all reasonable inferences drawn from those allegations in favor of appellees, it did not appear beyond doubt that appellees could prove no set of facts entitling them to the relief requested. Relying solely on the allegations in appellees' first amended complaint and the attachments included with the pleading, appellees' claims against appellants could not be dismissed based on immunity as set forth in R.C. Chapter 2744.Boyle 8/10/2017
Card v. Cleveland 105034Procedural Due Process; Civil Service Rule 8.45; notice; opportunity to be heard; pretermination; AWOL resignation; regular mail; certified mail; damages; reinstatement; attorney fees; civil rights; Section 1983 claim. Cleveland did not violate appellant's right to due procedural due process because it gave appellant notice and an opportunity to be heard before her employment was terminated. Cleveland violated appellant's rights under Civil Service Rule 8.45 because it failed to provide notice by certified mail. Trial court erred in awarding reinstatement with back pay without considering whether appellant would have been terminated if she had received notice in compliance with Civil Service Rule 8.45. Trial court erred in awarding attorney fees to appellant where there was no due process violation and appellant failed to allege a civil rights claim under 42 U.S.C. 1983 in the complaint.Gallagher 8/10/2017
Scheel v. Rock Ohio Caesars Cleveland, L.L.C. 105037Jurisdiction; R.C. 2505.02; final, appealable order; Civ.R. 54(B); pending counterclaims; voluntary dismissal. Appeal dismissed for lack of jurisdiction where appellees' counterclaims remained pending at the time appellant filed notice of appeal. Appellee could not create jurisdiction by voluntarily dismissing counterclaims after appeal was filed.Gallagher 8/10/2017
State v. Grayson 105081 & 105082Merger of multiple counts; allied offenses; improperly discharging firearm into habitation; felonious assault. Court erred in failing to merge four counts of improperly discharging a firearm into a habitation when defendant fired multiple successive shots into one window of a house occupied by several people. The "victim" of this offense is the occupied structure. The court did not err by failing to merge the improperly discharging a firearm into a habitation conviction with the defendant's assault convictions, as they are offenses of dissimilar import.Blackmon 8/10/2017
State v. Allison 105152Consecutive; sentence; purposes; recidivism; seriousness; disproportionate; findings; consider; contrary to law; minimum sanctions; protect public; punish. The trial court made the necessary findings for imposing consecutive sentences under R.C. 2929.14(C)(4) in one of appellant's five criminal cases. However, the court failed to make the necessary findings for running the sentences imposed in the remaining cases consecutive to each other. The trial court's partial recitation of the language contained in R.C. 2929.11(A) during the sentencing hearing did not render appellant's sentences contrary to law.Gallagher 8/10/2017
State v. Kushlan 105369Conceded error; guilty plea; Crim.R.11; mandatory prison term. Judgment reversed. Guilty plea vacated where defendant did not subjectively understand at the plea hearing that he was subject to a mandatory prison term on the aggravated vehicle homicide count.Kilbane 8/10/2017
Persaud v. St. John Med. Ctr. 105402Motion to amend complaint. It was not error where the trial court denied appellant's motion to amend his complaint that was previously dismissed with prejudice and granted summary judgment to appellee on grounds of res judicata and collateral estoppel.Jones 8/10/2017
McKee v. McCann 104956Political subdivision immunity; qualified privilege; intentional conduct. Court did not err by granting summary judgment to city and police officers. A political subdivision cannot be sued in intentional tort. Police officers and law director enjoyed qualified privileges to report facts detailing an incident in which the plaintiff was stopped on suspicion of shoplifting and arrested for, but not charged with, failing to provide identifying information to police officers.Stewart 8/10/2017
State ex rel. Davis v. Sutula 105817Mandamus; Civ.R. 56; failure to state a claim. Mandamus does not lie to compel a judge to produce evidence demonstrating a genuine issue of material fact or to provide reasons for a ruling on a motion for summary judgment. Complaint failed to state a claim for relief of mandamus and therefore is dismissed.Laster Mays 8/9/2017
State ex rel. Williams v. Gallagher 105835Petitioner's writ of mandamus will not issue to compel an act already performed.Singer 8/9/2017
State v. White 101576App.R. 26(B); untimely application; good cause; ineffective assistance of appellate counsel. Difficulty in obtaining trial transcript or appellant counsel's failure to provide records does not constitute good cause for failing to timely file an application to reopen pursuant to App.R. 26(B). Appellant's application also fails on the merits because appellant failed to demonstrate a genuine issue that he was deprived effective assistance of appellate counsel.Celebrezze 8/4/2017