11/02/2017


Case Caption

Case No.Topics and IssuesAuthorDecided
Bank of New York Mellon v. Roulston 104908Summary judgment; foreclosure; authentication of business records. The court erred by granting summary judgment to the holder of a note and mortgage, because the plaintiff was not qualified to testify as a witness regarding another company's previous loan servicing documents. The witness was qualified to authenticate documents created by the loan servicing company for whom she worked and the bank whose loans she serviced. However, her affidavit failed to aver that she had personal knowledge or familiarity of the record-keeping system that the previous loan serving company used.Blackmon 11/2/2017
Fed. Natl. Mtge. Assn. v. Herren 105088Foreclosure; note; mortgage; endorsement; invalid endorsement; holder; nonholder with rights of enforcement; R.C. 1303.31; R.C. 1303.21; R.C. 1303.22; curing a defective endorsement; summary judgment; separate right to enforce the mortgage; conditions precedent; notice of default. The trial court erred in granting summary judgment where there are material questions of fact regarding an unaddressed defective endorsement and assignments of the mortgage that do not track endorsements on the note.Celebrezze 11/2/2017
Brosnan v. Heinen's, Inc. 105207Premises liability, business invitee, duty of care, trip-and-fall, two-inch rule, open and obvious doctrine, defect, attendant circumstances. The trial court did not err in granting summary judgment for appellees. A business owner has no duty to warn of open and obvious dangers and the evidence does not demonstrate that the presence of the raised area in the parking lot constituted a defect. The "two-inch rule" is not a rule of per se liability and all of the attendant circumstances must be considered. Appellant was familiar with the area and admitted he was not paying attention.Laster Mays 11/2/2017
Cleveland v. Wells 105208C.C.O. 435.07; C.C.O. 413.03; C.C.O. 435.09(f); Sufficiency. Defendant's convictions for driving under suspension, traffic control signal, and fictitious plates were supported by sufficient evidence.Blackmon 11/2/2017
State v. Weakley 105293Ineffective assistance of counsel; plea negotiations; misstatement of law; failure to bifurcate having a weapon while under disability charge; stipulation regarding prior conviction; witness testimony regarding defendant's incarceration; mistrial; submission of unadmitted document to jury; motion for new trial; cumulative error. Defense counsel provided ineffective assistance of counsel during plea negotiations where he failed to correct a misstatement of law by the prosecutor regarding defendant's eligibility for judicial release that derailed defendant's attempt to accept a favorable plea offer. Cumulative error associated with defense counsel's failure to request bifurcation of having a weapon while under disability charge, improper testimony by witness regarding defendant's prior incarceration, and improper submission of an unadmitted, potentially prejudicial document to the jury deprived defendant of his right to a fair trial.Gallagher 11/2/2017
State v. Garner 105387Gross sexual imposition; re-sentencing; failure to consider R.C. 2929.11 and 2929.12. The trial court failed to conduct a full resentencing upon remand from this court by failing to allow for appellant's right to allocution and failing to consider relevant statutory sentencing authority before imposing sentence.Gallagher 11/2/2017
Lowe v. Farmers Ins. of Columbus, Inc. 105558Summary judgment; declaratory judgment; uninsured/underinsured motorists coverage; resident of the insured's household. Summary and declaratory judgment was improperly granted in favor of plaintiff when issues of fact remained as to whether plaintiff was a resident of her son's household, and thus, covered under her son's automobile insurance policy.Blackmon 11/2/2017
State v. Meadows 105753Conceded error; Crim.R. 11; failure to advise defendant of constitutional rights. Defendant's convictions reversed where trial court failed to advise defendant of his constitutional rights prior to accepting his guilty pleas in violation of Crim.R.11.Gallagher 11/2/2017
State v. Bates 105766Petition to vacate conviction; ineffective assistance of counsel; postconviction Relief. Trial court did not err in denying appellant's petition for postconviction relief where the petition was untimely and appellant failed to establish that he was unavoidably prevent from obtaining attached affidavits pursuant to R.C. 2953.23(A)(1). Appellant's guilty plea also barred an untimely application under R.C. 2953.23(A)(1).Gallagher 11/2/2017
State v. Mack 101261Successive petition for postconviction relief; death penalty; res judicata; R.C. 2953.23; R.C. 2953.21; Crim.R. 33; ineffective assistance of counsel; motion for new trial; withholding evidence; materiality. The trial court did not abuse its discretion in denying appellant's untimely and successive petition for postconviction relief and motion to file a motion for new trial where several claims were barred by res judicata and other claims did not cast serious doubt on the convictions in this case.Celebrezze 11/2/2017
Root v. Stahl Scott Fetzer Co. 104172JNOV, duty, Good Samaritan Doctrine, negligent undertaking, direct participant liability, R.C. 4123.74, immunity, Ohio Workers' Compensation Act, subsequent remedial measures, Evid.R. 407, punitive damages, bifurcation, apportionment. Sufficient evidence was produced to survive JNOV that the parent company affirmatively undertook the duty of safety owed by its subsidiary. Parent company was not immune from negligence under the OWCA because it was not the injured worker's "employer" under R.C. 4123.74. The trial court did not abuse its discretion in allowing testimony regarding subsequent remedial measures for purposes of proving the parent company's control. The trial court erred in directing verdict on punitive damages claim during compensatory damage phase of a trial bifurcated under R.C. 2315.21. Trial court did not err in treating the defendants as separate persons for apportionment of liability purposes.Keough 11/2/2017
State v. Smith 104263App.R. 26(B) application for reopening, postconviction motion to withdraw plea of guilty. An App.R. 26(B) application for reopening can only be used to reopen an appeal taken from the underlying judgment of conviction and sentence as imposed by the trial court. Because App.R. 26(B) applies only to the direct appeal of a criminal conviction and sentence, it cannot be employed to reopen an appeal that dealt with a postconviction motion to withdraw a plea of guilty.Kilbane 11/1/2017