12/08/2016


Case Caption

Case No.Topics and IssuesAuthorDecided
Schmitz v. Natl. Collegiate Athletic Assn. 103525Civ.R. 12(B)(6); statute of limitations; latent brain disease; discovery rule; reasonable diligence; negligence; fraudulent concealment; constructive fraud; loss of consortium. Although the trial court properly dismissed plaintiff's breach of contract claims as being time-barred, it erred in granting defendants' motion to dismiss the negligence and fraudulent concealment claims. The complaint does not show on its face that the negligence and fraud claims are time-barred. Generally, a cause of action accrues and the statute of limitation begins to run at the time the wrongful act was committed. The discovery rule, however, is an exception to this general rule and provides that a cause of action does not arise until the plaintiff knows, or by the exercise of reasonable diligence should know, that he or she has been injured by the conduct of the defendant. Although the complaint identifies injuries in the form of concussive and subconcussive impacts that the plaintiff suffered while playing football in the 1970s, the complaint alleges a latent injury that plaintiff was not aware of until his diagnosis in 2012, thereby warranting the application of the discovery rule. Without more facts or evidence in the record, we cannot say as a matter of law that plaintiff should have discovered earlier either (1) his injury or (2) that his injury was caused by the conduct of the defendants. Applying Ohio's liberal pleading standard, the trial court erred in dismissing plaintiff's negligence claim because duty was sufficiently pleaded to withstand a motion to dismiss. Ohio courts have consistently recognized "fraud by concealment" or "fraudulent concealment" when the fraud claim raises the issue of concealing a fact when a duty to disclose exists. Trial court erred in dismissing plaintiff's fraudulent concealment claim on the basis that such a claim is not recognized under the law. Unlike actual fraud, constructive fraud does not require proof of fraudulent intent. A claim for constructive fraud is dependent on a special confidential or fiduciary relationship, thereby giving rise to a duty to disclose. Fraud claims are subject to heightened pleading standard under Civ.R. 9(B). Trial court properly dismissed plaintiff's constructive fraud claim because the allegations of the complaint did not establish a fiduciary or "special relationship" under the law that would support such a claim. Because plaintiff pleaded cognizable torts against defendants, plaintiff-wife's loss of consortium claim should not have been dismissed.Boyle 12/8/2016
Kilbane v. Polzner 103567Motion to modify spousal support; lack of jurisdiction. Domestic relations court did not err by dismissing motion to modify spousal support, because the court did not retain jurisdiction to modify spousal support per the terms of the divorce decree.Blackmon 12/8/2016
State v. Smith 103586Preindictment delay; actual prejudice; manifest weight; R.C. 2907.02; rape; kidnapping; R.C. 2905.01; allied offenses; asportation; H.B. 86; S.B. 2. The trial court correctly determined that appellant failed to present evidence of actual prejudice due to preindictment delay, a prequisite to shifting the burden to the state to produce evidence of a justifiable reason for the delay. Appellant's convictions for rape and kidnapping are not against the manifest weight of the evidence; however, the court erred in failing to merge the rape and kidnapping where there was no movement of the victim with no increased risk of harm. Appellant's sentence for his 2006 offense was contrary to law, as S.B. 2 applied to the sentencing where H.B. 86 did not provide a reduced sentence.Laster Mays 12/8/2016
State v. Dye 103907Murder; juror; peremptory challenges; hearsay; character evidence; ineffective assistance of counsel. Appellant did not exercise all of his peremptory challenges during the jury selection and therefore he could not claim prejudice even if the trial court improperly overruled his challenge for cause regarding one of the jurors. The trial court did not abuse its discretion in admitting evidence appellant claimed to be impermissible character or "other acts" evidence. Appellant's claim of ineffective assistance of counsel is without merit.McCormack 12/8/2016
State v. Cowan 103855R.C. 2967.28; postrelease control; due process. Where sentencing journal entries set forth erroneous felony offense levels, and this error led to improper term postrelease control, matter had to be remanded for proper imposition of postrelease control. Although five prior sentencing hearings had been held in the matter, it does not offend due process protections to correct imposition of postrelease control because the defendant remained imprisoned.Kilbane 12/8/2016
Swoope v. Osagie 103938Defamation; defamation per se; summary judgment; Civ.R. 56; manifest weight; motion in limine; common-law qualified privilege; good faith; actual malice; statutory privilege; R.C. 5123.61; R.C. 5123.50; R.C. 5101.61(D); substantial truth doctrine; hearsay; Evid.R. 801; Evid.R. 802; Evid.R. 803(8); public records exception; Evid.R. 902. Because genuine issues of material fact existed as to whether appellant's complaint constituted actionable defamation, the trial court properly denied appellant's motion for summary judgment. The trial court did not abuse its discretion by admitting the investigator's report, as it was admissible under the Evid.R. 803(8) public records and reports exception to the hearsay rule. The jury's verdict on the plaintiff's defamation claim is not against the manifest weight of the evidence.Celebrezze 12/8/2016
In re I.W. 104098Parental rights; custody. The trial court did not err by awarding CCDCFS permanent custody of the children. Mother is in prison for abusing one of the children and children are thriving in foster care where they are receiving the medical and mental assistance they need. Clear and convincing evidence was presented that it was in the children's best interest for CCDCFS to have permanent custody.Blackmon 12/8/2016
State v. Cooper 104099Unclassified felonies; failing to have a license and permit for a solid waste facility; open dumping; open burning; possessing criminal tools; manifest weight of evidence; motion for acquittal; Crim.R. 29; sufficiency of evidence; Ohio Administrative Code; R.C. Chapter 3734; sentence; fine; community control sanction; indigent. Judgment affirmed. While R.C. 3734.05(A) and R.C. 3734.03 reference the Ohio EPA, neither of these statutes require the State, in this instance, to first pursue remedies through the Ohio Administrative Code. It was not error for the trial court to deny appellant's motion for acquittal on his failing to have a license and permit for a solid waste facility; open dumping; open burning; and possessing criminal tools convictions, as there was sufficient evidence in the record to support the convictions. The court did not abuse its discretion when it imposed the cost of soil clean up as part of defendant's community control sanctions because this condition had some relationship to the crimes committed and serves the statutory ends of community control. The court also did not abuse its discretion when imposing a mandatory fine and costs because the appellant indicated to the court that he has been paying his own fines without any problems and submitted receipts he had paid to clean up his property.Kilbane 12/8/2016
State v. Williams 104155Jail-time credit; R.C. 2967.191; R.C. 2929.19(B)(2)(g)(i). The trial court did not err when it applied defendant's jail-time credit to his probation violation case rather than his new case because he was in jail on the cases simultaneously. The trial court did err, however, when it ordered the sheriff to calculate defendant's jail-time credit rather than determine the amount itself.Boyle 12/8/2016
State v. McNamara 104168Sufficiency of the evidence; manifest weight of the evidence; illegal use of a minor in nudity-oriented material or performance; possessing criminal tools; inconsistencies in the evidence; circumstantial evidence; defendant actually used computer containing pornographic images. Judgment affirmed. Defendant's convictions are not against the manifest weight of the evidence and are supported by sufficient evidence. Circumstantial evidence and direct evidence inherently possess the same probative value and therefore should be subjected to the same standard of proof. There was sufficient evidence presented that would allow the trier of fact to find defendant downloaded, viewed, and possessed the nude images of underage girls on his laptop and took photos of the victim on his cell phone. Minor inconsistencies in witness testimony will not render a conviction so against the manifest weight of the evidence as to cause a miscarriage of justice. In the instant case, there were some minor inconsistencies, but there were also several material consistent statements made by the witnesses supporting the convictions.Kilbane 12/8/2016
Bakhtiar v. Saghafi 104204Divorce; incompetency; guardian; transcript. Court did not err as a matter of law by not directly inquiring of a spouse who had been declared incompetent after filing a divorce action whether the incompetent spouse continued to desire to pursue the divorce. The incompetent spouse's desire to pursue the divorce had been shown by her guardian, who had been substituted as a party plaintiff in the case and testified at trial that the incompetent spouse still desired a divorce.Stewart 12/8/2016
State v. Pratts 104235Mistrial; new trial; Crim.R. 33; Evid.R. 606(B); juror's statement regarding deliberation; sufficient evidence; circumstantial evidence. The trial court did not err when it denied defendant's motion for mistrial based on purported jurors' statements that photos of drugs on defendant's cell phone influenced their vote during deliberations. The jurors' statements could not be considered under Evid.R. 606(B) and the photos were not prejudicial. The state presented sufficient evidence of defendant's identity at trial.Boyle 12/8/2016
State v. Hurth 104241Vacating a guilty plea; sentence contrary to law. The appellant's guilty plea was made knowingly, voluntarily, and intelligently. The appellant did not establish that a manifest injustice had been committed allowing him to plead guilty. The prison sentence imposed as a result of the plea was not contrary to law because it fell within the statutory range, and the trial court considered the purposes and principles of felony sentencing set forth in R.C. 2929.11, and the sentencing factors set forth in R.C. 2929.12.Laster Mays 12/8/2016
In re L.C. 104255 Permanent custody; best interests of the child. Trial court's decision granting permanent custody of minor child to CCDCFS was supported by competent credible evidence where the evidence showed that the child could not be placed with either parent within a reasonable period of time and that permanent custody was in the child's best interests. Although mother completed aspects of her case plan, her mere completion was insufficient where the evidence demonstrated that she failed to benefit from the completed programs.Keough 12/8/2016
State v. Mihalis 104308Robbery; R.C. 2911.02(A)(3); sufficiency and manifest weight; ineffective assistance of counsel; court costs; R.C. 2929.11 and 2929.12; contrary to law. Appellant's conviction for robbery in violation of R.C. 2911.02(A)(3) was supported by sufficient evidence and was not against the manifest weight of the evidence. Trial counsel was not ineffective in failing to move for waiver of court costs where appellant failed to demonstrate he was prejudiced by the failure. Appellant's maximum sentence was not contrary to law where the sentence imposed was within the statutory range and the court considered R.C. 2929.11 and 2929.12. To the extent appellant disagrees with the manner in which the court weighed the sentencing factors in determining the length of the sentence, we have no jurisdiction for review.McCormack 12/8/2016
State v. Taylor 104313Crim.R. 32(C); fact of conviction. Appellant's sentencing entry stating that he pleaded guilty to felonious assault and the court accepted his guilty plea satisfied the requirement of Crim.R. 32(C) that a judgment of conviction must state the fact of conviction.McCormack 12/8/2016
Cleveland v. Heckathorne 104420Conceded error; Cleveland Codified Ordinances 551.19; insufficient evidence. Judgment of conviction for hauling solid waste without a permit was vacated for insufficient evidence when element of the offense, being engaged in the business of hauling waste, was not proven by the city.Stewart 12/8/2016
State v. Hicks 104676Anders; frivolous appeal; manifest weight; res judicata; merger; allied offenses. In an appeal from a resentencing hearing, appellant's arguments that his convictions are against the manifest weight of the evidence are barred by res judicata and are frivolous. Appellant's arguments that he cannot be sentenced on an offense that had previously merged is also frivolous when the offense that previously survived merger was reversed in a previous appeal.Celebrezze 12/8/2016
State ex rel. Eaves v. Cuyahoga Cty. 105041Mandamus, procedendo, R.C. 2969.225(A) sworn affidavit, sentencing journal entry, final appealable order, Crim.R. 32(C), dismissed specification, pending motion moot. The relator's complaint for writs of mandamus and procedendo is procedurally defective for failure to comply with R.C. 2969.25(A). Pursuant to R.C. 2969.25(A), an inmate that commences a civil action against a government entity or employee must file a sworn affidavit that contains a description of each civil action or appeal of a civil action filed in the previous five years in any state or federal court. The request for a writ of mandamus, as premised upon the failure of the trial court to include the dismissal of firearm specifications in the sentencing journal entry, fails because nothing in Crim.R. 32(C) requires a trial court to include as part of its sentencing entry the disposition of charges or specifications that were previously dismissed by the prosecutor. Finally, the relator's request for a writ of procedendo is moot, because the trial court rendered a ruling with regard to the motion to revise conviction/sentence.Kilbane 12/7/2016
State ex rel. Daniels v. Russo 104502Writ of mandamus, writ of procedendo. Relator's petition for writ of mandamus/procedendo is denied where his claims regarding lack of a final appealable order are without merit and adequate remedies in the ordinary course of law preclude a writ on his remaining claim regarding the court's alleged failure to advise him of his appellate rights.Kilbane 12/7/2016