Case Caption

Case No.Topics and IssuesAuthorDecided
Williams v. Schneider 104201, 104206, 104232R.C. Chapter 727/special assessments; valid lien; R.C. 2735.04/trial court's authority to establish receiver's power; lien priority; motion to strike affidavits; Civ.R. 56(E)/requirements for submitted affidavits; proper legal description; constructive notice; receivership orders; motion for leave; limitation of secured claim. The city of Parma Heights did not fail in substantially complying with R.C. Chapter 727; the trial court erred in finding that its special assessment lien was invalid; the trial court's ordering the sale of the property to be free and clear of all liens and claims was in the best interest of the receivership estate and was not an abuse of discretion; and statutory liens created by legislature gives the city precedence over all other attached liens - - the trial court erred in finding that the city's special assessment did not take priority. Individual testimony given was based on personal knowledge and familiarity with the project, not as expert testimony. The trial court did not abuse its discretion in denying the motion to strike their witness affidavits. The mortgage document contained sufficient enough information to identify the property being secured and give constructive notice. The trial court's granting of summary judgment was proper. The trial court did not abuse its discretion by allowing the receiver to pay relevant expenses necessary to preserve the value of the assets. The receiver's authorized performance did not fall outside of the scope of R.C. 2735.04. The trial court, however, did err in ordering the remaining balance of the account to be distributed either to remaining unsecured creditors or charity where there are secured parties. This court does not conclude that the trial court abused its discretion in denying appellant's motion for leave to file a reply brief. The trial court has broad discretion in managing its docket, and here, the trial court issued a journal entry setting a briefing schedule to which all parties agreed and stated how the issue of amounts owed would be resolved.Per Curiam 12/21/2017
U.S. Bank, N.A. v. Jeffers 105002Service; electronic filing; Civ.R. 5; Civ.R. 25; real party; plaintiff; substitute; waiver; interest; notification; e-filing system; abuse of discretion. The trial court did not abuse its discretion by granting U.S. Bank's motion to substitute the party plaintiff pursuant to Civ.R. 25(C). Defendant was promptly served with U.S. Bank's motion to substitute pursuant to the trial court's local rules for electronic filing.Gallagher 12/21/2017
Constantino v. Ciuni & Panichi, Inc. 105093Motion to stay litigation pending arbitration. The trial court did not err in denying appellants' motion to stay litigation pending arbitration because the appellee's disputes are not covered by the arbitration provision within the operating agreement.Laster Mays 12/21/2017
State v. Lundy 105117Rape; kidnapping; sufficiency; manifest weight; allied offenses; court costs. Defendant's rape and kidnapping convictions were supported by sufficient evidence and were not against the manifest weight of the evidence where the victim testified that she was raped and DNA found in the rape kit matched the defendant's DNA. Defendant's rape and kidnapping convictions should have merged for sentencing where the restraint and movement of the victim was slight, and the victim was released immediately after the rape.Gallagher 12/21/2017
Cleveland v. Tittl 105193Crim.R. 11, Traf.R. 10(B); no contest; effect of plea. Trial court failed to comply with Crim.R. 11(B) and Traf.R. 10(B) by failing to advise defendant of her Crim.R. 11 rights, including the effect of her plea.Keough 12/21/2017
State v. Ortiz 105301Guilty plea; concealed weapon; juvenile adjudication; right to challenge; weapon; felony; adult; information; due process; invalidate; element; disability; enhance; penalty. Defendant's claim that his conviction for having a weapon while under disability, in violation of R.C. 2923.13(A)(2), violated his due process rights by being predicated on a prior delinquency adjudication that, if committed by an adult, would have constituted an offense of violence, lacked merit because there was no basis or precedent to extend the holding of Hand to also invalidate a statute that made a prior delinquency adjudication an element of a crime.Gallagher 12/21/2017
In re $75,000.00 U.S. Currency 105314Forfeiture, motion to suppress, traffic stop, hidden compartments, delayed search, canine sniff, proceeds, competent credible evidence. The trial court did not err when it denied the appellant's motion to suppress. Further, the trial court's forfeiture order and finding that the $75,000 found in hidden compartments in the appellant's vehicle was proceeds of a criminal offense was supported by competent, credible evidence.Boyle 12/21/2017
State v. Tolbert 105326Postrelease control; motion to vacate postrelease control; necessary postrelease control advisements in sentencing entry. The trial court did not err when it granted defendant's motion to vacate his postrelease control. Based on the recent Ohio Supreme Court case, State v. Grimes, 151 Ohio St.3d 19, 2017-Ohio-2927, the trial court's postrelease control advisement in the sentencing entry ("Postrelease control is part of this prison sentence for 3 years for the above felony(s) under R.C. 2967.28.") was not "minimally compliant." Although it was sufficient to advise defendant of the mandatory nature of the postrelease control term, it did not properly advise defendant that he would face consequences for violating the terms of his postrelease control. Because defendant had already served his prison sentence, the trial court properly granted his motion to vacate postrelease control.Boyle 12/21/2017
State v. Rogers 105335 & 105518R.C. 2929.11, R.C. 2929.12, Class 2 suspension, R.C. 2903.08, arson registration, R.C. 2909.14, R.C. 2909.15, court costs, competency evaluation. Appellant's prison sentence upheld where the record supports the sentence. The driver's license suspension is contrary to law because none of the enhancement provisions apply to elevate the suspension to a Class 2 suspension. Trial court was not required to notify appellant of arson registration requirements at the time of his plea because registration is a remedial, collateral consequence. Costs were improperly included in the journal entry of conviction when they were waived in open court. Counsel was not ineffective for stipulating to the competency report or requesting an independent evaluation because the record shows that another evaluation would not have yielded different results.Keough 12/21/2017
Philbin v. Cleveland 105356Standing; administrative appeal; directly affected; contiguous property; non-contiguous property; actively participated; administrative hearing. Trial court properly dismissed administrative appeal brought by non-contiguous property owners who sought to challenge zoning variances where there was no evidence that they were directly affected by the variances.Gallagher 12/21/2017
Ruiz v. Brecksville 105390Dangerous dog; provocation; bite; attack; manifest weight. Trial court properly affirmed dangerous dog designation where competent, credible evidence showed that the dog left his owner's property, attacked the neighbor's dog without provocation, and the dog's owner sustained a dog bite while she was trying to separate the dogs.Gallagher 12/21/2017
In re A.K. 105426R.C. 3107.07(A), adoption, parental consent, contact, financial support, justifiable cause, no-contact order, de minimis, clear and convincing evidence, Civ.R. 53(D)(3)(b)(iii), objections to decision of magistrate, Civ.R. 53(D)(4)(b), discretion of trial court. The trial court did not err in holding that the natural father's consent to adoption by the children's maternal grandparents is not required. The existence of a no-contact order prohibiting the father from communicating with the children is not a justifiable cause under R.C. 3107.07(A) where the no-contact order was issued due to the father's murder of the mother. Father is serving a 23-year to life term of incarceration and did not attempt to modify the no-contact order. Further, under the unique circumstances of this case, the father may not seek to use his imprisonment to justify the failure to contact that resulted from his own actions. Under R.C. 3107.07(A), a determination that consent is not required on the issue of contact renders the question of financial support moot.Laster Mays 12/21/2017
Moore v. Russo 105448Motion to dismiss; declaratory judgment action; collateral attack; Civ.R. 12(B)(6); judicial immunity. The trial court did not err when it dismissed plaintiff's case against the judge who presided over plaintiff's criminal case. A declaratory judgment action cannot be used as a substitute for an appeal or as a collateral attack upon a conviction. Further, the criminal case judge enjoyed absolute judicial immunity due to the fact that he had jurisdiction to preside over plaintiff's criminal case and he acted judicially when he sentenced plaintiff in his criminal case.Boyle 12/21/2017
McCoy v. Ohio Dept. of Job & Family Servs. 105466Administrative appeal; sanction; reliable, probative evidence; certified record; benefits; state hearing; untimely; letter; notice. The trial court abused its discretion in determining that the agency's conclusion that McCoy's request for a state hearing was untimely was supported by "reliable, probative evidence."Gallagher 12/21/2017
Dover W. Condominium Unit Owners' Assn. v. Carandang 105490Foreclosure; Confirmation of Judicial Sale; Stay; Civ.R. 60(B)(3). Trial court did not err in denying homeowner's motion to vacate foreclosure default judgment; because homeowner did not file motion for stay of confirmation of the sale pending his appeal, and the order of confirmation had been carried out.Blackmon 12/21/2017
State v. Davis 105523Sufficiency, manifest weight of the evidence, pandering sexually oriented matter involving a minor, possessing criminal tools, allied offenses, plain error. The evidence presented at trial against the defendant was sufficient, and the defendant's convictions for pandering sexually oriented material involving a minor and possessing criminal tools were not against the manifest weight of the evidence. Further, the defendant's multiple convictions for pandering sexually oriented material involving a minor were not allied offenses of similar import.Boyle 12/21/2017
Wynveen v. Corsaro 105538Attorney disqualification, substantially related, confidential information, abuse of discretion. The trial court did not abuse its discretion when it disqualified the defendant's attorney because (1) the defendant, who is an attorney, had an attorney-client relationship with the plaintiff and that relationship was imputed to his attorney, who was a member of the same law firm; (2) the confidential information that the defendant acquired from his past representation of the plaintiff was imputed to his attorney; and (3) the matters that were the subject of the representations.Boyle 12/21/2017
State v. Theodorou 105630R.C. 2929.11, R.C. 2929.12, disproportionate, fine, indigent. Appellant's sentence was not contrary to law and was supported by the evidence in the record. The sentence was not disproportionate to similarly situated defendants convicted of selling heroin to individuals who later passed away from a drug overdose. Trial court did not abuse its discretion in imposing a fine despite the filing of an affidavit of indigency because the record reflects that the trial court considered appellant's present and future ability to pay.Keough 12/21/2017
State v. Lewis 105631 & 105632Felony sentencing; consecutive sentences for firearm specifications. Defendant's felony prison sentence was supported by evidence in the record and it was not contrary to law. Consecutive sentences for firearm specification were proper under R.C. 2929.14(B)(1)(g).Blackmon 12/21/2017
Clark v. Ohio Dept. of Job & Family Servs. 105642Ohio Adm.Code 5101:6-8-01, strict compliance, abuse of discretion, excusable neglect. The trial court's finding that the appellee timely filed his administrative appeal was not supported by reliable, probative, and substantial evidence.Boyle 12/21/2017
Cleveland v. Fraternal Order of Police, Lodge 8 105648Motion to vacate or modify arbitration award; motion to confirm and enforce arbitration award; collective bargaining agreement; prejudgment interest; frivolous appeal. Trial court's order upholding arbitration award in part affirmed, because arbitrator acted within his authority when revoking police officers' suspensions. Trial court's order vacating arbitration award in part affirmed, because arbitrator had no authority to remove police officers' disciplinary files. Trial court properly awarded prejudgment interest. There were reasonable grounds for this appeal; therefore, the appellee is not entitled to attorney fees and costs under App.R. 23.Blackmon 12/21/2017
Geico Gen. Ins. Co. v. Fleminster 105659Civ.R. 60(B); Notice Trial court did not err in granting appellee's motion for relief from judgment where court's notice of default hearing gave appellees incorrect hearing date.Blackmon 12/21/2017
State v. Vargas 105680Appellate mandate, remand for resentencing, res judicata, consecutive sentences. On a limited remand for resentencing on the issue of consecutive sentencing, the trial court is limited only to addressing the issue of consecutive sentences, and res judicata bars assignments of error challenging issues that could or should have been raised in the direct appeal.Blackmon 12/21/2017
In re A.M.R. 105751R.C. 3109.04(B); transcript; final appealable order; substantial right; in camera; best interests; parents; custody; access; wishes; due process; parental rights. The trial court erred by denying the motion by counsel for the child for access to the transcript of the in camera interview.Gallagher 12/21/2017
Kaufman v. Young 105761Motion to enforce settlement agreement; motion for reconsideration; motion to squash subpoena. Appellants' cited cases were not persuasive and there was no error in the trial court's denial of appellants' motion to file a reply brief and motion for reconsideration of that denial. Appellants provided sufficient enough evidence where the trial court should have conducted a hearing on whether the settlement agreement had been breached. Appellants should be permitted to proceed with discovery. Any issues regarding their requests for discovery should be handled in camera by the trial court.Jones 12/21/2017
Jackson v. PNC Bank, N.A. 105842Validity of trust, statute of limitations, leave to amend, abuse of discretion. While the appellant claimed that her claim was for fraud, the allegations in her complaint established that she was actually contesting the validity of the trust. Therefore, the trial court did not err in dismissing the appellant's complaint for failing to file within the appropriate statute of limitations period.Boyle 12/21/2017
State v. Varholick 105905R.C. 4511.19(G)(1)(e)(iv)/suspension of driver's license; R.C. 4510.038/reinstatement of a lifetime driver's license suspension; R.C. 4510.54(A)/process for seeking reinstatement/hearing. The trial court erred in granting the reinstatement where appellant had not met the statutory 15-year waiting period requirement. The trial court also did not hold a hearing before granting the reinstatement. Although appellant's suspension was pursuant to R.C. 4511.19(G)(1)(e)(iv), and not pursuant to R.C. 4510.37, 4511.19, or 4510.07, appellant still had to meet the requirements for reinstatement under R.C. 4510.038 because of prior driver's license suspensions.Jones 12/21/2017
State v. Cedeno 97337App.R. 26(B); application to reopen; ineffective assistance of appellate counsel; and untimely. The court denied the App.R. 26(B) application to reopen as untimely.Laster Mays 12/19/2017
State ex rel. Dilley v. Donnelly 106332Mandamus; Procedendo; Motion to void judgment; and mootness. Mandamus and procedendo action to compel ruling on a motion to void judgment was rendered moot by the respondent denying the motion.Gallagher 12/19/2017
State ex rel. Haddox v. Kraus 106281Mandamus; procedendo; moot; clear legal duty; recall of a warrant. Neither mandamus nor procedendo will lie to compel the performance of a duty that has already been performed. Additionally, because relator's allegations do not demonstrate a failure by the respondent to perform a clear legal duty, mandamus or procedendo are not appropriate.McCormack 12/18/2017
State v. Wynn 103824App.R. 26(B); untimely; good cause; ineffective assistance of appellate counsel; pro se supplemental brief; res judicata. Applicant failed to demonstrate good cause for his untimely application for reopening, requiring denial of his application. Aside from being untimely, applicant's arguments were barred by res judicata. Applicant was given an opportunity to file a pro se supplemental brief in his direct appeal, wherein he could have raised arguments that he now asserts for reopening. Additionally, some of the arguments raised by applicant in support of reopening were already raised and rejected in his direct appeal.Gallagher 12/15/2017