10/05/2017


Case Caption

Case No.Topics and IssuesAuthorDecided
In re A.R. 104869, 104870, 104871, 104872, 104873, 104875, 104876Probation admission, due process, ineffective assistance of counsel. The juvenile court erred in failing to inform the juvenile appellant of the consequences of his admission in accordance with Juv.R. 29(D). The juvenile court also failed to follow the requirements of Juv.R. 35 by sentencing the appellant on cases that the state did not file a motion to invoke the continuing jurisdiction of the court. In addition, the appellant did not receive effective assistance of counsel because his counsel did not object to the juvenile court's failure to comply with Juv.R. 35.Laster Mays 10/5/2017
Cleveland v. Giering 105020Motion to suppress, sufficiency, manifest weight, creech error. Trial court did not err in denying appellant's motion to suppress evidence obtained from her OVI traffic stop because the arresting officer had reasonable suspicion to make the stop based on her erratic driving and probable cause to arrest her for OVI based on his interactions with her. No violation of State v. Creech, Slip Opinion No. 2016-Ohio-8440, occurred in this instance because the introduction of a record of one of appellant's prior OVI convictions was necessary to establish her present offense and the prejudice which the court in Creech was concerned with did not occur here. Appellant's OVI convictions were supported by sufficient evidence and not against the manifest weight of the evidence.Gallagher 10/5/2017
Chisholm v. Cleveland Clinic Found. 105106Civ.R. 56/summary judgment; motion to stay; discovery. The trial court erred where it denied appellant's motion to stay and denied appellant's motion to re-open discovery thereby limiting appellant's ability to establish a genuine issue of material fact.Jones 10/5/2017
State v. Maddox 105140Crim.R. 32.1, maximum sentence, contrary to law. Trial court did not abuse its discretion in denying defendant's presentence motion to withdraw his guilty pleas where the evidence showed that the defendant merely had a change of heart. The trial court is no longer required to give findings prior to imposing a maximum sentence, and the defendant failed to show by clear and convincing evidence that the record does not support his sentence. Failing to receive an anticipated and recommended, but not promised, sentence does not render a sentence contrary to law.Keough 10/5/2017
Van Dress Law Offices Co., L.L.C. v. Dawson 105189Breach of attorney fee agreement; independent review; objections to magistrate's decision; Civ.R. 53(D)(3)(b)(iii); failure to file transcript; waiver of objections to factual findings; form of signature; individual liability; narrative billing; reasonableness of attorney fees. Appellant waived factual challenges to magistrate's decision by failing to file a transcript or affidavit with the trial court as required under Civ.R. 53(D)(3)(b)(iii). Appellate court could not consider transcript on appeal that was not provided to the trial court when ruling on objections to magistrate's decision. Trial court did not abuse its discretion in adopting magistrate's conclusion that appellant was individually liable under attorney fee agreement where both the form of the promise and the form of appellant's signature to the agreement supported that determination. Law firm's alleged failure to submit itemized billing statements did not preclude it from recovering for breach of attorney fee agreement. Appellant's claim that law firm failed to present sufficient evidence establishing that its fees were reasonable and necessary could not be considered because it would involve a factual analysis of the evidence presented before the magistrate.Gallagher 10/5/2017
State v. Black 105197Sufficiency; manifest weight; court costs; participating in a criminal gang; felonious assault; improperly handling a firearm in a motor vehicle; improperly discharging into habitation; discharge of firearm on or near prohibited premises; having weapons while under disability; R.C. 2929.14(B)(1)(a); R.C. 2929.14(B)(1)(g); R.C. 2947.23. Appellant's convictions are supported by sufficient evidence and are not against the manifest weight of the evidence. The trial court did not err in imposing court costs. Because the trial court mistakenly believed that it was required to order consecutive service of the firearm specifications underlying Counts 40 and 41 pursuant to R.C. 2929.14(B)(1)(g), this aspect of appellant's sentence is reversed and remanded for resentencing.Celebrezze 10/5/2017
Kisling, Nestico & Redick, L.L.C. v. Progressive Max Ins. Co. 105287Motion for summary judgment; attorney charging lien; assignment; third-party settlement with former client, despite prior notice of charging lien. Judgment affirmed. An attorney and client may lawfully agree upon compensation to the attorney contingent upon the amount to be recovered, either by settlement or by judgment. Ohio courts recognize the validity of this charging lien. Law firm's charging lien is enforceable against tortfeasor's insurer because the law firm advanced expenses and obtained a settlement demand from the insurer, the insurer had knowledge of the law firm's charging lien before it settled the claim with the law firm's former client and, despite this knowledge, distributed the settlement proceeds to the former client solely.Kilbane 10/5/2017
Cuyahoga Cty. Treasurer v. Holloway 105309R.C. 2501.02, final appealable order, magistrate's decision, objections Appeal dismissed for lack of a final appealable order where the trial court failed to rule on timely filed objections to the magistrate's decision prior to adopting the magistrate's decision.Keough 10/5/2017
State v. Taylor 105322The general division of the common pleas court had jurisdiction over defendant who committed offense as a juvenile. Statute deprives juvenile court of jurisdiction if a person under eighteen years of age allegedly commits an act that would be a felony if committed by an adult and the person is not taken into custody or apprehended for that act until after the person attains twenty one years of age. R.C. 2151.23(I) uses the terms "apprehended" and "taken into custody" to mean some form of detention. The defendant was not detained for his offense at the time he was first identified, so he was neither in custody nor apprehended.Stewart 10/5/2017
In re L.M. 105393Rape, kidnapping, aggravated menacing, arson, juvenile delinquency, court interpreter, lie detector. Trial court erred in failing to provide appellant with an interpreter as required by R.C. 2311.14(A)(1) at his arson plea hearing. Trial court erred in ordering appellant to complete a lie detector examination prior to his adjudication for his rape, kidnapping and aggravated menacing counts.Gallagher 10/5/2017
State v. Wilson 105535Jail-time credit; R.C. 2967.191; res judicata; R.C. 2929.19; consecutive sentence; final order. Appellant was not entitled to jail-time credit for the time he served in federal prison, and the trial court had no authority to grant appellant's request to modify his sentences from consecutive to concurrent terms.Celebrezze 10/5/2017
Haber Polk Kabat, L.L.P. v. Condominiums at Stonebridge Owners' Assn., Inc. 105556Standing; charging lien; equitable interest; appointment of receiver; R.C. 2735.01(A)(7); sua sponte; abuse of discretion. Law firms had standing to appeal trial court's decision to appointment receiver in action brought by law firms against former client to collect attorney fees due under a written contingency fee agreement. Trial court did not abuse its discretion in appointing a receiver, sua sponte, without an evidentiary hearing pursuant to R.C. 2735.01(A)(7) where the law firms sought equitable relief and the facts and circumstances supporting the appointment of a receiver were established by the admitted facts set forth in the pleadings.Gallagher 10/5/2017
State v. Armstrong 105943Conceded error; R.C. 2967.191; jail-time credit. The trial court erred in failing to correct its sentencing entry in response to appellant's pro se motion for jail-time credit. The trial court did not properly credit appellant for time served in municipal jails as well as time served prior to resentencing and while awaiting transport to prison. The state conceded the error.Kilbane 10/5/2017
State ex rel. Vigil v. Calabrese 106121Procedendo; petition for postconviction relief; mootness. Procedendo action to compel ruling on a petition for postconviction relief was rendered moot by the judge issuing a ruling.Boyle 10/4/2017
Blue v. Ryan 106166, 106180, 106181, 106182Prohibition, mandamus, sua sponte dismissal; R.C. 2731.04; failure to properly caption case. Sua sponte dismissal warranted where the claimant obviously cannot prevail on the facts alleged in the complaints to issue a writ of mandamus or a writ of prohibition. Relator's failure to comply with R.C. 2731.04 separately supports dismissal of mandamus action.Kilbane 10/3/2017
State v. Miller 104427 & 104228App.R. 26(B) application for reopening, timely filed application for reopening, ineffective assistance of appellate counsel, R.C. 2941.03(D), defective indictment for failure to identify place where charged offense occurred, jurisdiction of court of common pleas per Ohio Constitution Article IV, Sec. 4(A). The appellant, through his two proposed assignments of error has failed to demonstrate ineffective assistance of appellate counsel. The indictments were sufficient because they identified that the charged offenses occurred in Cuyahoga County. In addition, courts of common pleas possess statewide jurisdiction per Article IV, Sec. 4(A) of the Ohio Constitution.Gallagher 10/2/2017
State v. Robinson 88473App.R. 26(B); untimely; no good cause; no meritorious argument. 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 almost 11 years beyond the deadline. Applicant's argument in support of reopening lacked merit and therefore cannot support a colorable claim of ineffective assistance of counsel on appeal as required under App.R. 26(B)(5).Kilbane 9/29/2017
State v. White 104224App.R. 26(B); ineffective assistance of counsel; R.C. 2941.03(D); defective indictment; guilty plea; and waiver. White's argument that the indictment was invalid because it did not state where the offense occurred, as required by R.C. 2941.03(D), was not persuasive. The indictment did include an averment that the crime occurred in Cuyahoga County, and a guilty plea waives defects in the indictment.Gallagher 9/29/2017