12/01/2016


Case Caption

Case No.Topics and IssuesAuthorDecided
Bank of Am., N.A. v. Calloway 103622Foreclosure; standing; conditions precedent; Civ.R. 9(C); R.C. 1303.36(A); Assignment of Mortgage; Unjust Enrichment. Trial court did not err by adopting the magistrate's decision that granted judgment in favor of the bank in the foreclosure action. The bank's representative had personal knowledge of the appellants' loan showing that the appellants defaulted on the note secured by the mortgage and that the bank possessed both the note and mortgage at the time the complaint was filed. The evidence showed that the bank sent the appellants default and notice of acceleration letters prior to filing the foreclosure action. Appellants failed to specifically deny in their answer that the conditions precedent had been performed and therefore it is deemed admitted pursuant to Civ.R. 9(C). Trial court did not err by concluding that appellants signed the note and mortgage. Handwriting expert testified at trial and appellants did not specifically deny the genuineness of his signature in his answer as required by R.C. 1303.36(A); therefore, the genuineness of his signature is deemed admitted. The appellants did not have standing to dispute the assignment of the mortgage and even if they did it would not affect the standing of the bank who possessed the note that was indorsed in blank. Whether the magistrate erred by allowing the bank to amend its complaint to add an unjust enrichment claim at trial is moot because the trial court found the bank had successfully proven its breach of contract claim. Unjust enrichment is an equitable principle that only applies if there is no remedy in contract or tort.Blackmon 12/1/2016
Garfield Hts. v. Marbury 103849Allocution; R.C. 2937.07; access to counsel; ineffective assistance of counsel; no contest plea; motion to withdraw. The court did not violate R.C. 2937.07 or defendant's right of allocution where the court allowed defendant to explain circumstances of the offense and make statements in mitigation of sentence. Defendant was not denied access to counsel or the effective assistance of counsel where even though counsel met with defendant shortly before pretrial where counsel urged defendant to exercise his right to trial and defendant pleaded no contest against advice of counsel. Court properly overruled motion to withdraw no contest plea where defendant failed to provide reasonable and legitimate reason for withdrawing the plea.Gallagher 12/1/2016
Cleveland v. Gosier 103919Manifest Weight, Restitution. Appellant's conviction was not against the manifest weight of the evidence. Appellant's restitution order was supported by competent, credible evidence.Gallagher 12/1/2016
State v. Rawls 104191Application for DNA testing; R.C. 2953.71 et seq.; existence of evidence; outcome determinative; aggravated robbery; touch DNA; records; property room; lost evidence; destroyed evidence. The trial court abused its discretion when it relied solely, and without a hearing, on the prosecutor's insufficient R.C. 2953.75(B) investigation report when concluding biological evidence did not exist for the purposes of DNA testing. The court further erred in failing to provide its reasons for concluding, in the alternative, that the results of DNA testing would not be outcome determinative.Stewart 12/1/2016
Parma v. Brown 104219Crim.R. 16/discovery; traffic violations; Traf.R. 11(B)(2)(b); App.R. 9(C)/statement of proceedings. ant failed to file a transcript or an App.R. 9(C) statement of proceedings for this court's review. The trial court did not abuse its discretion in denying appellant's motions. Best practice is for city to respond to discovery in writing or to make sure docket indicates that discovery was provided in pretrial.Jones 12/1/2016
State v. Davis 104221Having weapons while under disability; R.C. 2929.13; Crim.R. 29; sufficiency; manifest weight; circumstantial evidence; constructive possession; sentencing; R.C. 2953.08; contrary to law; R.C. 2929.11; R.C. 2929.12; R.C. 2929.14. Appellant's conviction for having weapons while under disability is supported by sufficient evidence and is not against the manifest weight of the evidence. The trial court's sentence is not contrary to law.Celebrezze 12/1/2016
Blue Ash Auto, Inc. v. Progressive Cas. Ins. Co. 104251,104252Class Action Certification, Declaratory Judgment, Civ.R. 23(B)(2),(3). Trial court did not err in denying appellants motion to certify a class under Civ.R. 23(B)(2) and (3). Appellants proposed class for declaratory judgment under Civ.R. 23(B)(2) was improper because it would merely lay a foundation for subsequent determinations regarding liability or facilitate an award of damages. Appellant's proposed class certification for Civ.R. 23(B)(3) damages was properly denied because common questions of law or fact did not predominate over the case-by-case factual disputes that would entail the overwhelming majority of the litigation.Gallagher 12/1/2016
Claybrooks v. Giant Eagle Inc. 104347Final appealable order; dismissal; App.R. 4(A); contempt proceedings. The imposition of a two-week deadline to comply with a previous sanction award is not a final appealable order, and in light of the fact that the sanction award was not timely appealed upon the termination of the case, no arguments as to the merits of the sanction award can be considered.Gallagher 12/1/2016
In re N.M. 104498Motion to intervene; final appealable order; res judicata; abuse of discretion; in loco parentis. Juvenile court abused its discretion by denying a grandfather's motion to intervene in a permanent custody case when the grandfather presented an unopposed affidavit alleging that he stood in loco parentis to his grandchildren.Blackmon 12/1/2016