Case Name |
Case No. |
Topics and Issues |
Author |
Decided |
WebCite |
Saffold v. Croom |
100806 |
Arbitration
agreement; arbitrability; de novo; federal arbitration act; Trial
court erred in denying defendant’s motion to compel arbitration where
parties had an arbitration agreement that covered the alleged dispute as
well as an arbitrability provision that required the court to refer
questions regarding the scope of the arbitration clause’s coverage to
the arbitrator. |
Gallagher |
7/24/2014 |
2014-Ohio-3241 |
State v. L.S. |
100793 |
Jurisdiction; juvenile; State conceded that the court of common pleas lacked jurisdiction to convict minor defendant. |
Gallagher |
7/24/2014 |
2014-Ohio-3240 |
State v. Totty |
100788 |
Anders
brief; Crim.R. 11; Allied offenses; postrelease control; forfeiture;
Following filing of an Anders brief by appellant’s counsel, the court
conducted an independent review of the entire record as well as a review
of potential errors raised by counsel and found no errors in
appellant’s plea or sentencing. |
Gallagher |
7/24/2014 |
2014-Ohio-3239 |
State v. Wells |
100732 |
Anders
brief; withdraw appeal; guilty plea Crim R. 11; judgment affirmed.
Defendant’s guilty plea was knowingly, intelligently, and voluntarily
made. Thus, the appeal to is frivolous under Anders, and appellate
counsel’s request to withdraw and affirm the trial court’s judgment is
granted. |
Kilbane |
7/24/2014 |
2014-Ohio-3238 |
Simic v. Accountancy Bd. of Ohio |
100618 |
CPA
certificate; firm registration renewal; R.C. 4701.16; administrative
appeal; R.C. 119.12; Ohio Adm.Code 4701-13-01; abuse of discretion. The
trial court abused its discretion in relying on evidence that appellant
violated a cease and desist order when the administrative agency’s
hearing was limited to the appellant’s failure to submit a triennial
registration fee. The administrative agency’s adjudication order is
void because the agency failed to provide notice of the violation for
which the appellant was sanctioned. |
Gallagher |
7/24/2014 |
2014-Ohio-3237 |
Klik v. Moyer |
100576 |
Final
order; Civ.R. 60(B); relief from judgment; QDRO; timeliness. The trial
court did not abuse its discretion in denying the plaintiff relief from a
1993 divorce decree, after plaintiff waited 18 years before taking any
action to seek a QDRO effectuating plaintiff’s award of an interest in
her husband’s pension. |
Gallagher |
7/24/2014 |
2014-Ohio-3236 |
Alden v. FirstEnergy Corp. |
100575 |
Nunc
pro tunc; dismissal; jurisdiction. Trial court lacked jurisdiction to
issue a nunc pro tunc order that changed its dismissal with prejudice to
one without prejudice. Such a change is substantive and not clerical. |
Blackmon |
7/24/2014 |
2014-Ohio-3235 |
Third Fed. S. & L. Assn. of Cleveland v. Formanik |
100562, 100810 |
Civ.R.
60(B); motion to vacate judgment; objections; magistrate’s decision;
statute of frauds; modification; course of performance; pro se;
excusable neglect; inaction; operative facts; counsel; withdraw; abuse
of discretion; motion to quash; subpoena. Trial court abused its
discretion in denying a Civ.R. 60(B) motion for relief from the trial
court’s judgment adopting a magistrate’s decision and ruling against
appellants on their counterclaims where appellants’ trial counsel had
recently withdrawn from the case and appellants substantiated their
efforts to retain new counsel and had prepared pro se objections to the
magistrate’s decision that were not properly filed. Appellants
presented operative facts warranting relief, and the grounds for relief
from judgment were met. Appellee’s defense of the statute of frauds was
rejected where it was not raised at trial and did not preclude a claim
of modification through course of performance. The trial court did not
abuse its discretion in allowing trial counsel to withdraw and in
granting a motion to quash a subpoena. |
Gallagher |
7/24/2014 |
2014-Ohio-3234 |
Ryerson v. White |
100547 |
Objections
to magistrate’s decision, asset transfer; fiduciary; confidential
relationship; presumption of undue influence; abuse of discretion;
manifest weight; fraudulent conduct; handwriting expert; admission of
evidence; Evid.R. 608(B); harmless error. |
Gallagher |
7/24/2014 |
2014-Ohio-3233 |
State v. Donat |
100485 |
Consecutive
sentence; finding; mitigating factors; mental health condition;
ineffective assistance of counsel; medication; plea hearing. Record
supported the findings trial court must make before imposing a
consecutive sentence. Defense counsel’s decision not to request
continuance did not constitute ineffective assistance of counsel where
defendant had stopped taking pain medication several days before the
plea hearing, and defendant was not under the influence of medication at
the time of the plea. |
Gallagher |
7/24/2014 |
2014-Ohio-3232 |
State v. Paster |
100458 |
Consecutive
sentence; findings; R.C. 2929.14(C); sufficient evidence; importuning;
attempted unlawful sexual conduct with minor; authentication.
Defendant’s convictions affirmed, sentenced reversed, and remanded for
resentencing. The trial court did not comply with R.C. 2929.14(C)when
it did not make the required findings. The state presented sufficient
evidence to sustain defendant’s importuning and attempted unlawful
sexual conduct with a minor convictions. Defendant sent texts to a
“15-year-old girl” stating what he wanted to do with her sexually and
defendant met girl at place they arranged to meet. Witnesses direct
testimony of own cell phone records and internet print out was
sufficient evidence to authenticate these documents. |
Kilbane |
7/24/2014 |
2014-Ohio-3231 |
State v. Wright |
100433 |
Sentence
was not erroneous where trial court stated that it considered the
statutory sentencing factors in R.C. 2929.11 and 2929.12 and journal
entry states that court considered all required factors of the law;
court is not obligated to give any particular weight or consideration to
any sentencing factor. |
Kilbane |
7/24/2014 |
2014-Ohio-3230 |
State v. Evans |
100382 |
Consecutive
sentences findings, not disproportionate, competency, stipulation to
competency. The trial court did not make the necessary finding that
consecutive sentences are not disproportionate to the seriousness of the
offender’s conduct. The trial court’s judgment sentencing of
consecutive terms is reversed with the limited remand for the purpose of
determining whether consecutive sentences should be imposed. Further
action by the trial court was not required when the appellant stipulated
to the competency report, and therefore failed to maintain the
competency issue. The judgment of the trial court is affirmed. |
Gallagher |
7/24/2014 |
2014-Ohio-3229 |
State v. Glover |
100330, 100331 |
Postconviction
relief; federal constitutional right to effective counsel in
postconviction proceedings; ineffective assistance of counsel;
codefendants; jurisdiction. Trial court did not err in denying
codefendants successive petition for postconviction relief, pursuant to
R.C. 2953.23(A)(1). Martinez v. Ryan, 566 U.S. 1, 132 S.Ct. 1309, 182
L.Ed.2d 272 (2012) does not apply to the instant case, where
codefendants were afforded the opportunity to and did in fact raise the
issue of ineffective assistance of counsel in prior appeals. |
Gallagher |
7/24/2014 |
2014-Ohio-3228 |
State v. Klembus |
100068 |
OVI;
repeat OVI offender specification; prior felony offenses; R.C.
2941.1413(A); violation of equal protection and due process of law;
proof of additional element. R.C. 2941.1413 allows the prosecutor to
arbitrarily obtain a greater prison sentence for the underlying offense
without proof of any additional element, fact or circumstance. The
repeat OVI offender specification violates equal protection because it
gives the state unfettered discretion to choose between two
significantly different punishments when charging similarly situated OVI
offenders. |
Gallagher |
7/24/2014 |
2014-Ohio-3227 |
Wells Fargo Bank, NA v. Froimson |
99720 |
foreclosure;
standing; holder; summary judgment; evidentiary quality materials. In a
foreclosure action, the trial court’s order granting summary judgment
was affirmed. The plaintiff bank had standing to bring the action as it
was the successor of the original lender and was the holder of the note
at the time that the complaint was filed. The summary judgment motion
was supported by evidentiary quality materials that established that the
bank was entitled to a judgment as a matter of law. |
Rocco |
7/24/2014 |
2014-Ohio-3225 |
State v. Smith |
98547 |
Consecutive
sentence; remand; jurisdiction; resentencing. Consecutive sentence
imposed on remand affirmed. Court was not required to make findings for
imposition of consecutive sentence because court was instructed by this
court to simply reinstate defendant’s original conviction minus one
year for a firearm specification of which defendant was acquitted. |
Gallagher |
7/24/2014 |
2014-Ohio-3224 |
Pointer v. Russo |
101548 |
Writ;
habeas corpus; fatally defective; commitment papers; R.C. 2725.04(A).
Petition for writ of habeas corpus is dismissed because it is fatally
defective for failure to comply with R.C. 2725.04(D) and is without
merit since relator’s sentence has not yet expired. |
Celebrezze |
7/23/2014 |
2014-Ohio-3244 |
State ex rel. Green v. Saffold |
101151 |
Procedendo,
procedural deficiencies, moot. Relator failed to comply with the
requirements for filing an action seeking a writ of procedendo and the
action is moot because the respondent judge issued a ruling on relator’s
motion for jail time credit. |
Rocco |
7/22/2014 |
2014-Ohio-3242 |
State v. Ellis |
99830 |
Ineffective
assistance of appellate counsel; App.R. 26(B); aggravated murder,
involuntary manslaughter; lesser included offense; expert
qualifications; and double jeopardy. The double jeopardy clause does
not prohibit multiple charges arising from the same incident. The trial
court’s merger of multiple offenses precluded a double jeopardy
argument on multiple punishments. Involuntary manslaughter is a lesser
included offense of aggravated murder. An indictment for aggravated
murder puts a defendant on notice that he must be ready to defend on
involuntary manslaughter. The forensics detective was qualified to be
an expert, and counsel need not raise the argument that there should
have been a pretrial hearing to determine his qualifications. |
Blackmon |
7/22/2014 |
2014-Ohio-3226 |
State v. Moore |
57223 |
App.R.
26(B), untimely; no good cause. Untimely application to reopen
pursuant to App.R. 26(B) is denied where applicant fails to establish
good cause for the delayed filing. |
Kilbane |
7/18/2014 |
2014-Ohio-3223 |
State v. Pettis |
100851 |
Petition
for postconviction relief; ineffective assistance of counsel; rape; res
judicata. The trial did not abuse its discretion when it denied
appellant’s petition for postconviction relief. The trial court did not
commit error when it denied appellant’s claim of ineffective assistance
of counsel. The judgment of the trial court is affirmed. |
Gallagher |
7/17/2014 |
2014-Ohio-3147 |
Metro Diplomat Healthcare |
100799 |
Civ.R.
10(D)(2); affidavit of merit; medical claim. Court erred by finding
that claims that did not raise issues of medical negligence were subject
to the affidavit of merit requirement of Civ.R. 10(D). Court did not
err by finding that a nurse practitioner was unqualified to render an
opinion in an affidavit of merit on whether a psychiatrist breached the
applicable duty of care. |
Stewart |
7/17/2014 |
2014-Ohio-3146 |
Srokowski v. Shay |
100739 |
Civ.R.
12(B)(6). Trial court did not err in denying city’s motion to dismiss
as to Srokowski’s claims for negligent infliction of emotional distress
and negligence because, in this early stage of the proceedings,
accepting as true all material allegations of the complaint and making
all reasonable inferences in favor of Srokowski, it is not clear beyond
dispute that this matter involves a governmental function. |
Kilbane |
7/17/2014 |
2014-Ohio-3145 |
Strongsville v. J.M.B. |
100680 |
R.C.
2953.32(B); R.C. 2953.61; Application for Expungement; Hearing; Multiple
Offenses; Differing Depositions. Trial court erred in summarily
denying application for expungement without holding a hearing as
required by R.C. 2953.32(B); R.C. 2953.61, which applies to expungement
applications involving multiple offenses that arise as a result of or in
connection with the same act and the offenses have differing
dispositions, did not apply to the defendant’s application because the
defendant was convicted of both offenses. |
Keough |
7/17/2014 |
2014-Ohio-3144 |
State v. Dines |
100647 |
R.C.
2929.191/correction to judgment of conviction; completion of sentence.
The trial court did not err in not considering R.C. 2929.191(A)(1) and
(A)(2) in its procedure for sentencing appellant. This portion of the
revised code applies to sentences imposed before July 11, 2006.
Appellant was sentenced on January 7, 2007. Remand for a nunc pro tunc
entry to correct the omission of notification of postrelease control
where appellant failed to show a deficiency of notification at
sentencing hearing is proper. Appellant had served his prison term for
one offense of his total sentence. It was error for the trial court to
add postrelease control for that portion of appellant’s sentence. |
Jones |
7/17/2014 |
2014-Ohio-3143 |
State v. Shabazz |
100623 |
Motion
for a new trial; Crim. R. 33; res judicata - Res judicata bars
defendant’s successive motion for a new trial where arguments raised in
the motion were previously raised and rejected in prior appeals.
Notwithstanding, defendant failed to satisfy his burden of proving he
was unavoidably prevented from discovering the purported new evidence. |
Keough |
7/17/2014 |
2014-Ohio-3142 |
State v. Dent |
100605 |
Crim.R.
32.1; postsentence motion to withdraw plea; abuse of discretion; res
judicata. The trial court did not abuse its discretion in denying a
postsentence motion to withdraw a guilty plea advancing claims that
could have been raised in the direct appeal of the underlying
conviction. |
Gallagher |
7/17/2014 |
2014-Ohio-3141 |
State v. Blackley |
100574 |
Sentence,
maximum, more than co-defendant for lesser offense. Because the trial
court explained the basis for its decision to impose a maximum prison
term on appellant for committing gross sexual imposition, while imposing
the same prison sentence on the co-defendant who pleaded guilty to
rape, appellant’s sentence was not contrary to law. |
Rocco |
7/17/2014 |
2014-Ohio-3140 |
State v. Gray |
100492 |
Trial court’s determination that defendant-appellant was a sexual predator was not against the manifest weight of the evidence. |
Rocco |
7/17/2014 |
2014-Ohio-3139 |
State v. Williams |
100488 |
Consecutive
sentences; R.C. 2929.14(C)(4); R.C. 2953.08(G)(2); standard of review;
clearly erroneous; abuse of discretion. Court made all of the required
findings necessary to impose consecutive sentences under R.C.
2929.14(C)(4) and the record on appeal did not show those findings to be
so clearly erroneous as to warrant reversal. |
Stewart |
7/17/2014 |
2014-Ohio-3138 |
State v. Matthews |
100476 |
R.C.
2929.14/resentencing hearing/jurisdiction; consecutive sentences.
Appellant failed to seek reconsideration of this court’s judgment
pursuant to App.R. 26(A) in her direct appeal, therefore, her current
assignment of error regarding modification of sentence pursuant to R.C.
2953.08 is not properly before this court. The trial court erred where
it did not make the requisite statutory findings for consecutive
sentences. |
Jones |
7/17/2014 |
2014-Ohio-3137 |
State v. Bidinost |
100466 |
Sexual
predator classification; hearing; likely to reoffend; clear and
convincing evidence; judgment reversed. The state failed to prove by
clear and convincing evidence that defendant is a sexual predator. The
trial court did not state that defendant was likely to commit future
offenses. |
Kilbane |
7/17/2014 |
2014-Ohio-3136 |
Solon v. Hrivnak |
100411 |
OVI;
field sobriety tests; manifest weight; sufficiency of evidence.
Although appellant offered alternative explanations for his poor
performance in the field sobriety tests, his conviction of OVI was
neither supported by insufficient evidence nor against the manifest
weight of the evidence. |
McCormack |
7/17/2014 |
2014-Ohio-3135 |
State v. Taylor |
100315 |
Inconsistent
Verdicts; Evid. R. 611; Child Witness; Consecutive Sentences; Sexually
Violent Predator Specification; Court Costs. Consistency between
verdicts on several counts of an indictment is unnecessary where the
defendant is convicted on one or some counts, and acquitted on others;
Court did not err by allowing victim impact representative sit near the
testifying child who was crying uncontrollably; Court complied with R.C.
2929.14(C) in imposing consecutive sentences; R.C. 2971.01(H)(1) allows
for the inclusion of a sexually violent predator specification in the
indictment of one being charged for the first time with a sexually
violent offense; Court erred by imposing cost of prosecution as court
costs when no evidence of the amount was presented. |
Blackmon |
7/17/2014 |
2014-Ohio-3134 |
State v. Brothers |
100163, 100164 |
Sufficiency;
Crim.R. 29/motion for acquittal; manifest weight; right to confront
witnesses. Evidence submitted at trial was sufficient to support
appellant’s conviction. Appellant, granted an expert at state’s
expense, failed to test all samples retrieved at the scene, and
appellant’s trial counsel did not refute the one sample that was tested.
The sample tested along with DNA found on the victim was compelling
enough to support appellant’s conviction. The trial court’s admittance
of testimony by BCI forensic examiners was not error. The examiners
testified to the results of the sample taken and tested and to
statistical DNA evidence derived from the FBI database. This
statistical DNA evidence has previously been determined to not be
testimonial. |
Jones |
7/17/2014 |
2014-Ohio-3132 |
Cleveland v. Farrell |
100136 |
Crim.R.
12( C)(2) motion to dismiss; Cleveland Codified Ordinance 433.03/speed;
sufficiency; manifest weight. The traffic ticket indicated the basic
facts and set forth the ordinance at issue thereby giving appellant
notice of the nature of the charge. The trial court did not err in
denying appellant’s motion to dismiss the charges. Operating a vehicle
in excess of the limitations sets forth a prima facie violation, and
appellant provided no evidence to overcome the state’s case. There was
no error in the court’s finding of guilt. |
Jones |
7/17/2014 |
2014-Ohio-3131 |
Benson v. Callahan |
101435 |
Mandamus
and/or procedendo; moot, Loc.App.R. 45(B)(1)(a) sworn affidavit; R.C.
2969.25(A) sworn affidavit. Relator’s complaint for writ of mandamus
and/or procedendo is moot. Respondent denied the motion to vacate and
set aside sentence. In addition, the complaint is subject to dismissal
for failure to comply with Loc.App.R. 45(B)(1)(a) and R.C. 2969.25(A). |
Kilbane |
7/13/2014 |
2014-Ohio-3243 |
State v. Scahel |
100705 |
Speedy
trial, statutory, constitutional. Court erred by deciding motion to
dismiss for want of speedy trial on constitutional grounds because the
motion to dismiss raised only statutory grounds as a basis for
dismissal. |
Stewart |
7/10/2014 |
2014-Ohio-3042 |
State v. Smith |
100792 |
Bootstrapping;
Untimely appeal. This court lacks jurisdiction to consider appellant’s
appeal. Appellant’s previous appeal was dismissed as untimely, and his
act in subsequently refiling an identical motion in the trial court for
that court to deny again constituted “bootstrapping” and did not
thereby “restart” the clock for purposes of App.R. 4(A). |
Rocco |
7/10/2014 |
2014-Ohio-3041 |
State v. Mace |
100779 |
Motion
to vacate; postrelease control. The trial court did not err in denying
appellant’s motion to vacate postrelease control, however, because
appellant has completed his sentence, this case is remanded for an entry
stating that appellant is not subject to postrelease control. |
Jones |
7/10/2014 |
2014-Ohio-3040 |
S. Euclid v. Korn |
100747 |
Sufficient
evidence; manifest weight; South Euclid Municipal Code Section 331.16;
right of way at intersections. - The city presented insufficient
evidence to prove each element of the offense beyond a reasonable doubt;
defendant cannot be punished for the city’s failure to cite him under
the proper ordinance. |
Celebrezze |
7/10/2014 |
2014-Ohio-3039 |
State v. Simmons |
100638 |
Untimely
postconviction relief petition; R.C. 2953.21. - Trial court did not err
when it denied defendant’s untimely petition for postconviction relief. |
Boyle |
7/10/2014 |
2014-Ohio-3038 |
State v. Pyne |
100580 |
Postrelease
control; R.C. 2967.28; escape; R.C. 2921.34(A)(3); notification. - When
a trial court properly notifies a defendant at sentencing about
postrelease control and the consequences of violating postrelease
control, but fails to incorporate that notice into the sentencing entry,
the postrelease control is void and the defendant cannot later be
charged with escape for violating postrelease control. |
Boyle |
7/10/2014 |
2014-Ohio-3037 |
State v. Stowes |
100540 |
R.C.
2929.14( C)(4)/consecutive sentences. The trial court made the
requisite statutory findings for consecutive sentences and therefore did
not err where it imposed consecutive sentences. |
Jones |
7/10/2014 |
2014-Ohio-3036 |
In re A.S. |
100530, 100531 |
Legal
custody; best interest of the child; R.C. 2151.353; preponderance of the
evidence; abuse of discretion. — The trial court did not abuse its
discretion in awarding legal custody to Grandmother as its decision was
supported by a preponderance of the evidence and was in the best
interest of the children. |
McCormack |
7/10/2014 |
2014-Ohio-3035 |
State v. Smith |
100501 |
Preindictment
delay; prejudice; rape; gross sexual imposition; manifest weight. -
Defendant failed to establish that the preindictment delay caused him
actual prejudice; defendant’s rape and gross sexual imposition
convictions were not against the manifest weight of the evidence. |
Celebrezze |
7/10/2014 |
2014-Ohio-3034 |
Euclid Hous. Partners, Ltd. v. Wells Fargo Bank, N.A. |
100421 |
Non-recourse
loan; default; contract interpretation; mortgage; note; guaranty;
summary judgment; damages. Trial court erred in determining that
appellant-guarantor was personally liable under the single-purpose
entity provision set forth in the note and the guaranty. The
unambiguous language set forth that only the borrower was liable if that
provision was violated. Because the money damages awarded to
appellee-lender were based on the trial court’s erroneous conclusion,
the case was remanded to determine the proper extent of the guarantor’s
liability. |
Rocco |
7/10/2014 |
2014-Ohio-3033 |
State v. Wells |
100365 |
Rape;
consecutive sentences; proportionality; consistency; sentencing factors;
uncharged crimes; inaccuracy in a PSI; R.C. 2907.02; R.C. 2953.08; R.C.
2929.11; R.C. 2929.12; R.C. 2929.14(C)(4); R.C. 2951.03. - Appellant’s
sentence of 12 years for rape and a community control violation was not
an abuse of discretion because that is not the standard of review. The
sentence imposed did not take into consideration improper factors or
uncharged allegations, but the court failed to make all the findings
necessary to impose consecutive sentences, requiring a limited remand. |
Celebrezze |
7/10/2014 |
2014-Ohio-3032 |
Westlake v. Gordon |
100295 |
Motion
to suppress; furtive movements; search of vehicle; probable cause.
Trial court erred in granting motion to suppress evidence found during
search of vehicle after passenger voluntarily relinquished criminal
tools during a consensual encounter with the responding police officer. |
Gallagher |
7/10/2014 |
2014-Ohio-3031 |
State v. Liuzzo |
99545 |
App.R.
26(B); granted in part, denied in part; R.C. 2947.23( C); allied
offenses; R.C. 2929.11; computer restriction. Application to reopen
fails to establish ineffective assistance of counsel concerning allied
offenses and sentencing issues that were raised in the initial appeal
and where an error concerning notification regarding the performance of
community service for unpaid court costs is harmless. Application to
reopen is granted regarding a computer restriction that was imposed as
part of the prison sentence and but is not authorized by statute.
Application granted in part and denied in part. |
Jones |
7/9/2014 |
2014-Ohio-3030 |
In re T.H. |
100852 |
Permanent
custody; “12 of 22”; 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 minor child has been in the temporary custody of a public services
agency for 12 or more months of a consecutive 22 month period and that
permanent custody was in the child’s best interests. |
Keough |
7/3/2014 |
2014-Ohio-2985 |
State v. Richardson |
100838 |
Anders
brief; frivolous appeal; independent review. After an independent
review pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18
L.Ed.2d 493, this court found no errors in the trial court that were
prejudicial to appellant. Appointed counsel’s motion to withdraw is
granted. |
Boyle |
7/3/2014 |
2014-Ohio-2984 |
Smith v. ExpressJet Airlines, Inc. |
100832 |
Appeal
dismissed; privileged documents. The appeal has been rendered moot
because the trial court granted summary judgment on grounds unrelated to
the disputed materials while the appeal was pending. |
Blackmon |
7/3/2014 |
2014-Ohio-2983 |
Deutsche Bank Natl. Co. v. Caldwell |
100594 |
Standing;
final, appealable order; interior view; appraisal; foreclosure;
sheriff’s sale; R.C. 2329.17; confirmation of sale; actual view. An
appeal from a confirmation of sale includes only issues that arise from
that proceeding. The failure to appeal from the order of sale precludes
the argument of issues that arise from that portion of the proceeding.
Where no prejudice results when an appraisal is conducted without an
interior view of the premises subject to foreclosure, the trial court
does not err in confirming the order of sale. |
Celebrezze |
7/3/2014 |
2014-Ohio-2982 |
State v. Ervin |
100528 |
Delay
in resentencing; R.C. 2929.14(C)(4)/consecutive sentences; allied
offenses; imposition of costs. Where appellant was serving a 101-year
sentence beyond his current 31-year sentence and could not have been
released during the delayed period for resentencing him, appellant
suffered no prejudice because of the delay. The trial court erred when
it did not make the disproportionality finding. The trial court
addressed the issue of merger at sentencing and there was no error. The
trial court erred where it imposed costs in its sentencing entry but
did not impose those costs at the sentencing hearing. |
Jones |
7/3/2014 |
2014-Ohio-2981 |
State v. Bauer |
100438 |
R.C.
4511.19(G); waiver of counsel. Prior conviction for DUI was properly
included within furthermore clause as penalty enhancer during “lookback
period” of R.C. 4511.19(G), as record indicated that the court in the
prior matter made a finding that defendant knowingly and voluntarily
waived his right to counsel. |
Kilbane |
7/3/2014 |
2014-Ohio-2980 |
State v. Moore |
100401 |
Mandatory
fines, court costs, pat down, handcuffs, traffic stop, detain, arrest,
indigence, statutory criteria. The trial court did not error when it
denied defendant’s motion to suppress evidence. Defendant’s affidavit
of indigence was not properly submitted, and therefore, the trial court
was not obligated to consider defendant’s indigency status. The trial
court committed reversible error when they failed to impose a mandatory
fine and court costs at the sentencing hearing. The trial court’s
imposition of a mandatory fine and court costs is reversed with the
limited remand for the purpose of a new sentencing hearing. The trial
court considered all of the necessary sentencing criteria for this
felony conviction. |
Gallagher |
7/3/2014 |
2014-Ohio-2979 |
State v. Tyree |
100377, 100378 |
Guilty
plea, substantial compliance, failure to advise defendant of potential
fine. Judgment affirmed. The trial court’s omission of the possible
fines and court costs will not render a plea invalid if the trial court
never actually imposed the fines or court costs. In such instances, the
defendant cannot show that he would not have entered the plea. |
Kilbane |
7/3/2014 |
2014-Ohio-2978 |
Natl. City Bank v. Goodyear Tire & Rubber Co. |
100178 |
R.C.
2125.02/wrongful death/authorized estate representative/statute of
limitations; Civ.R. 6(B)/excusable neglect; capacity to sue; Loc.R.
16/case management order; complaint a nullity; loss of consortium.
Appellants’ failure to properly identify the proper plaintiff bringing
suit did not amount to excusable neglect. Plaintiffs failed to
substitute the correct party when they refiled their complaint. The
listed party lacked standing to bring the suit. Appellants presented
their claim that Loc.R. 16 is unconstitutional for the first time at
oral argument. Appellants’ claim on the constitutionality of Loc.R. 16
is waived. Plaintiffs failed, for over a four-year period, to move to
amend their complaint or file a substitution of parties, and plaintiffs’
claims were time-barred. Plaintiff’s complaint is a nullity and the
trial court did not err in dismissing plaintiffs’ complaint with
prejudice. Where a primary cause of action fails, a derivative claim
cannot be maintained. |
Jones |
7/3/2014 |
2014-Ohio-2977 |
State v. Black |
100114 |
Guilty
plea; voluntary; promise of sentence; ineffective assistance of
counsel; consistency; R.C. 2929.11(B). Guilty plea entered by defendant
who pleaded guilty and gave the police a statement against
codefendants, but who received longer sentence than his codefendants,
was voluntary because there were no promises made on the record as to
what kind of sentence he would receive. The sentence imposed on
defendant did not violate R.C. 2929.11(B) because it was only
marginally longer than that given to a similar codefendant and the state
represented that defendant was the “point man” in the robbery. |
Stewart |
7/3/2014 |
2014-Ohio-2976 |
State v. Hostacky |
100003 |
Plain
error; witness testimony; prosecutorial misconduct; ineffective
assistance of counsel; R.C. 2929.14(D)(1)(b)/consecutive sentences. The
officer’s testimony about the victim’s demeanor was not an attempt to
vouch for the victim’s credibility, but rather a means to explain why
the officer believed the victim had been robbed. The trial court
committed no error in allowing the testimony. There was sufficient
evidence beyond the prosecutor’s statements made at closing for a
finding of guilty. Moreover, the jury was instructed that closing
statements are not evidence. There was no prosecutorial misconduct.
Defense counsel objected throughout the trial on issues that he saw fit
to do so. Defense counsel’s failure to object on other issues did not
rise to the level of ineffective assistance. The trial court erred in
not merging the two having weapons while under disability counts. |
Jones |
7/3/2014 |
2014-Ohio-2975 |
Cuyahoga Cty. Treasurer v. Samara |
99977 |
Delinquent
tax certificate for 2009 was prima facie evidence of the amount and
validity of the taxes and of their nonpayment. Appellant’s self-created
“presentment for value” and her self-created “debt forgiveness voucher”
are not currency or legal tender, and are not negotiable instruments,
so there has been no valid payment of the tax debt under R.C. 323.14,
and foreclosure was properly granted. See R.C. 5721.18. |
Kilbane |
7/3/2014 |
2014-Ohio-2974 |
State v. Robinson |
99917 |
Evid.R.
402; relevant evidence; jury instruction; invited error; accomplice
instruction; ineffective assistance of counsel; allied offense;
aggravated robbery; murder. Court’s instruction that jury could stop
deliberating on an “unhung” count was invited error. Court’s responses
to jury instructions were proper where the court rephrased its earlier
instructions on the elements of each crime. Jury is not required to
reach unanimous agreement on alternative theories of principal offender
or aider and abettor so long as they unanimously agree beyond a
reasonable doubt that the defendant’s actions constituted the offense
charged. Counsel was not ineffective for failing to request a unanimity
instruction on accomplice liability because it was not required.
Aggravated robbery and murder were not allied offenses. |
Gallagher |
7/3/2014 |
2014-Ohio-2973 |
Holloway v. State |
100586 |
Judgment
affirmed; wrongful imprisonment, R.C. 2743.48, plain meaning. The
judgment of the trial court is affirmed; the trial court properly
dismissed Holloway’s complaint for wrongful imprisonment as Holloway
could not meet all five of the required prongs of the statute; the trial
court did not err in relying on evidence outside of the complaint as
the evidence relied upon was attached to the complaint by Holloway
himself. |
Gallagher |
7/3/2014 |
2014-Ohio-2971 |
Abraitis v. Gallagher |
101037 |
Writ
of prohibition; subject matter jurisdiction; will contest; declaratory
judgment; interested party; standing. Probate court has statutory
jurisdiction over will contest and declaratory judgment actions and does
not patently and unambiguously lack jurisdiction to determine the
standing of a party to those actions. Relator has an adequate remedy at
law to challenge the probate court’s determination regarding standing of
a party to maintain those actions, therefore, relator has not
established the requirements for a writ of prohibition. |
Kilbane |
7/2/2014 |
2014-Ohio-2987 |
State ex rel. Litwinowicz v. Euclid |
101008 |
writ
of mandamus, defective complaint, adequate remedy at law. Complaint for
writ of mandamus is dismissed for procedural defects and for failure to
state a claim. |
Rocco |
7/1/2014 |
2014-Ohio-2986 |
State v. Johnson |
46837 |
App.R.
26(B) application for reopening, untimely filed, failure to establish
good cause for untimely filing. The App.R. 26(B) application for
reopening was filed more than ninety days after the journalization of
the appellate judgment that is subject to reopening. The applicant
failed to establish good cause for the untimely filing of the
application for reopening. Thus, this court is prohibited from reopening
the applicant’s appeal. |
Gallagher |
6/30/2014 |
2014-Ohio-2972 |
In re D.J. |
101180 |
Temporary
custody; permanent custody; final appealable order; R.C.
2151.415(D)(4). The denial of a motion to modify temporary custody to
permanent custody is still not a final appealable order even in light of
an order by the trial court alleged to be in violation of R.C.
2151.415(D)(4). |
Gallagher |
6/26/2014 |
2014-Ohio-2778 |
Siller v. State |
100839 |
Summary
judgment; lesser-included offense; R.C. 2743.48/wrongful imprisonment
retroactive application of court decision. The trial court committed no
error in granting appellee’s motion for summary judgment. Appellants
pleaded guilty to a lesser-included offense of the originally indicted
charge of aggravated robbery and neither appellant made an attempt to
set aside those guilty pleas. Appellants were foreclosed from asserting
a claim for being wrongfully incarcerated. |
Jones |
6/26/2014 |
2014-Ohio-2777 |
In re A.G. |
100783, 100912 |
Child
custody; R.C. 2151.23(F)(1); Uniform Child Custody Jurisdiction and
Enforcement Act; home state; R.C. 3127.15(A); person acting as a parent.
The trial court erred in determining that it lacked jurisdiction over
the child custody proceeding. The child lived in Ohio with a “person
acting as a parent” for more than six consecutive months prior to the
filing of a motion for emergency temporary custody. |
Celebrezze |
6/26/2014 |
2014-Ohio-2776 |
Will Repair, Inc. v. Grange Ins. Co. |
100717 |
Summary
judgment; declaratory judgment; breach of contract; insurance coverage;
contract interpretation; missing property; physical evidence; illusory
Trial court did not err in granting summary judgment in favor of
insurer on insured’s claims for declaratory judgment and breach of
contract for losses allegedly sustained due to theft of insured’s
business property. Insurance policy excluded coverage for property
stolen by insured’s employees and for missing property for which there
was no physical evidence to show what happened to the property. |
Rocco |
6/26/2014 |
2014-Ohio-2775 |
Rogers v. Fuerst |
100670 |
Civ.R.
12(B)(6); R.C. 2303.08; R.C. 2303.10. A clerk of court’s failure to
file stamp a pleading does not create a jurisdictional defect; filing
may be proven by other means. |
Boyle |
6/26/2014 |
2014-Ohio-2774 |
State v. Thornton |
100592 |
Sufficiency;
manifest weight; trafficking; permitting drug abuse; complicity; aider
and abettor; juvenile specification; voir dire. Trafficking and
permitting drug abuse convictions affirmed where officers testified they
observed drug transaction between defendant, CRI, and a juvenile.
Defendant was not prejudiced by juror’s statements during voir dire even
though he stated he would be biased in favor of two witnesses. The
juror explained that he trained the witnesses as CMHA police officers
and worked alongside them. He did not offer an opinion on their honesty
or credibility. |
Gallagher |
6/26/2014 |
2014-Ohio-2773 |
Wingfiled v. Cleveland |
100589 |
Summary
judgment; city; police department; horse; exception to immunity. Trial
court properly granted summary judgment to city, police department, and
police officers where plaintiff alleged that he had been trampled by
the officers’ horses. Police department is not a legal entity capable
of being sued, and the city and officers were immune from liability
where no exceptions to immunity applied. |
Keough |
6/26/2014 |
2014-Ohio-2772 |
Simmons v. Narine |
100545 |
Civ.R.
41(B)(1); Civ.R. 41(B)(3); dismissal of complaint with prejudice;
notice; failure to attend court-ordered conference. Trial court did not
abuse its discretion in dismissing plaintiff’s complaint with prejudice
pursuant to Civ.R. 41(B)(1) after plaintiff twice failed to appear for
settlement conference as ordered by the court and court gave notice in
judgment entries scheduling settlement conferences that failure to
appear could result in dismissal of a party’s claims. |
Rocco |
6/26/2014 |
2014-Ohio-2771 |
In re S.H. |
100529 |
Rape;
sufficiency of the evidence; manifest weight of the evidence. Based on
the victim’s testimony and sexual assault nurse examiner’s testimony,
the state presented sufficient evidence to support a delinquency finding
of rape. Defendant’s conviction is not against the manifest weight of
the evidence; trial court was free to believe the victim over the
defendant’s testimony. |
Boyle |
6/26/2014 |
2014-Ohio-2770 |
State v. Davis |
100526 |
Criminal
nonsupport; R.C. 2919.21(B); R.C. 2919.21(D); affirmative defense;
sufficiency of the evidence; manifest weight of the evidence. The state
presented sufficient evidence that defendant recklessly disregarded his
child support obligation; defendant only made nine separate, partial
payments in a 24-month span. Conviction is not against the manifest
weight of the evidence; defendant failed to prove by a preponderance of
the evidence the affirmative defense contained in R.C. 2919.21(D).
Defendant failed to provide support despite satisfying his own needs and
desires, including a drug habit. |
Boyle |
6/26/2014 |
2014-Ohio-2769 |
State v. Mango |
100490 |
Domestic
Violence, Felonious Assault, New Trial, Newly Discovered Evidence. The
trial court did not abuse its discretion in denying without a hearing
appellant’s motion for a new trial based upon newly discovered evidence
after she was convicted of felonious assault and domestic violence. In
the affidavit attached to appellant’s motion, the affiant neither
indicated the reason appellant could not produce her as a witness at
trial, nor offered to testify at a new trial, nor could provide any
information relevant to the incident; the affiant’s statements were
offered only to impeach the victim’s credibility. |
Rocco |
6/26/2014 |
2014-Ohio-2768 |
In re I.A.G. |
100486 |
Appellate
practice, failure to fully brief an assignment of error, presumption of
regularity in bench trial, scope of remand; Child Support; Evidence,
business records. This court presumes that the juvenile court
considered only relevant and admissible evidence in determining
appellant’s child support obligation. Because appellant admitted that
he supplied the copies of his cancelled checks and bank statements for
his business upon which the court relied in making its calculations, the
business record exception to the hearsay rule applied and the evidence
was sufficiently authenticated. The juvenile court’s mandate on remand
was to reassess appellant’s child support obligation; therefore, the
court did not abuse its discretion in remaining within that scope and
permitting the mother simply to testify that her unemployment
compensation had remained stable from the time of the previous trial.
This court will not address an issue that appellant fails to fully argue
in his appellate brief. |
Rocco |
6/26/2014 |
2014-Ohio-2767 |
State v. Bonds |
100481 |
Maximum
sentence; felony sentencing; R.C. 2929.11 and 2929.12; contrary to law.
The trial court satisfied the requirements outlined in R.C. 2929.11
and 2929.12 when it imposed a maximum sentence. The sentence is
therefore not contrary to law. |
McCormack |
6/26/2014 |
2014-Ohio-2766 |
Bank of New York Mellon v. Hutchins |
100435 |
Mortgage;
note; standing, res judicata; Civ.R. 60(B); appeal; jurisdiction. Res
judicata bars appellant’s claims where issue of standing was litigated
and adjudicated by the trial court prior to granting summary judgment in
favor of bank. A Civ.R. 60(B) motion cannot be used as a substitute
for an appeal. |
Stewart |
6/26/2014 |
2014-Ohio-2765 |
State v. Rosa |
100324, 100325 |
Ineffective
assistance of counsel; sufficiency of the evidence; trespass element;
parking lot. Defendant’s ineffective assistance of counsel claim lacks
merit; defendant failed to demonstrate a reasonable probability that the
proceedings would have been different had his trial counsel requested a
more specific bill of particulars or moved to dismiss the indictment.
State presented sufficient evidence as to the element of trespass to
support the breaking and entering count; defendant was neither a tenant
nor visitor at the time that he entered the private parking lot, and
defendant was subject to an order of protection that expressly
prohibited him from entering the victim’s parking lot. |
Boyle |
6/26/2014 |
2014-Ohio-2764 |
State v. Jones |
100300 |
motion
to suppress; drugs; informant; loud music; search and seizure; odor of
marijuana; dog; reasonable suspicion; pat-down search; exigent
circumstances; plain feel; metropolitan housing authority; deputy
sheriffs; R.C. 2935.03(D); exclusionary rule. Denial of motion to
suppress was proper where metropolitan housing authority officers
conducted a lawful traffic stop, had reasonable suspicion to investigate
further, and conducted a lawful search and seizure. The police
initiated a traffic stop for a violation of a city ordinance prohibiting
loud music from a motor vehicle, and during the investigatory stop the
officers developed a reasonable suspicion that appellant was engaged in
criminal activity. The officers also had probable cause to search
appellant’s person for drugs. The odor of marijuana was detected from
the vehicle appellant was driving; a drug dog alerted to the odor of
drugs from the vehicle; appellant was seen making a furtive movement in
the vehicle; the vehicle matched the description provided by an
informant and was traveling into the area of an arranged drug-buy. The
metropolitan housing authority officers were sworn deputy sheriffs with
authority to arrest anywhere in the county, and an arrest made in
violation of R.C. 2935.03(D) is not a constitutional violation subject
to the exclusionary rule. |
Gallagher |
6/26/2014 |
2014-Ohio-2763 |
State v. Pitra |
100284 |
Burglary,
ineffective assistance of counsel. Trial counsel did not provide
ineffective assistance in failing to call a potential witness. Trial
court did not abuse its discretion in allowing the homeowner to testify
about her fear during a burglary incident. |
McCormack |
6/26/2014 |
2014-Ohio-2761 |
Reese v. George |
100276 |
Insured;
plain meaning; declaratory judgment; summary judgment; conduct of
business. Trial court properly granted summary judgment to insurer in
declaratory judgment action because defendant was not an insured under
the commercial liability policy; defendant’s actions were personal in
nature and not related to the conduct of his businesses. |
Keough |
6/26/2014 |
2014-Ohio-2760 |
State v. Stephens |
99051 |
Consecutive
sentences; conceded error. Trial court did not make the necessary
findings to support the imposition of consecutive sentences. The state
concedes the error. |
McCormack |
6/26/2014 |
2014-Ohio-2759 |
State ex rel. Velez v. Russo |
101332 |
Mandamus,
motion for jail time credit, Loc.App.R. 45(B)(1)(a) sworn affidavit,
R.C. 2969.25(A) affidavit of past civil actions and appeals, R.C.
2969.25(C) statement of balance in inmate account and other
cash/valuables. Relator’s complaint for a writ of mandamus is moot.
Respondent granted relator’s motion for jail time credit. In addition,
relator’s complaint is subject to dismissal for failure to comply with
Loc.App.R. 45(B)(1)(a), R.C. 2969.25(A), and 2969.25(C). |
McCormack |
6/23/2014 |
2014-Ohio-2779 |
State v. Grant |
100497 |
Consecutive
sentences; costs. Trial court did not err in imposing consecutive
sentences for three counts of rape and one count of aggravated robbery.
The trial court committed plain error in imposing court costs in its
sentencing entry without informing him of those costs in open court. |
Kilbane |
6/19/2014 |
2014-Ohio-2656 |
State v. Kimmie |
100750 |
Motion
to withdraw; motion to dismiss appeal; Anders brief; R.C.
2929.14(C)(4)/consecutive sentences. At appellant’s resentencing, the
trial court complied with making the necessary findings under R.C.
2929.14(C), and that being the only possible issue for review on appeal,
appellant’s appeal is frivolous and dismissed. |
Jones |
6/19/2014 |
2014-Ohio-2653 |
In re J.G. |
100681 |
Permanent
custody; best interest of the child; R.C. 2151.414; clear and
convincing; abandoned; notice requirements; Juv.R. 29; adjudicatory and
dispositional hearing; Juv.R. 34; R.C. 2151.35; ineffective assistance
of counsel. Clear and convincing evidence supports the trial court’s
determination that the mother abandoned the child and permanent custody
to the agency is in the best interest of the child. Notice requirements
of Juv.R. 29(B) were satisfied. The trial court did not err in
proceeding immediately to dispositional hearing following the
adjudicatory hearing as the requirements of R.C. 2151.35 and Juv.R. 34
had been satisfied. Counsel was not ineffective for consenting to
immediate disposition as the mother has failed to demonstrate how
delaying the proceedings would have changed the outcome of the
proceedings. |
McCormack |
6/19/2014 |
2014-Ohio-2652 |
Beckman v. Playhouse Square Found. |
100627 |
Premises
liability; open-and-obvious doctrine; assumption of the risk;
negligence; attendant circumstances. The trial court properly granted
summary judgment to a premises owner where a volunteer employee fell
during evacuation training because the volunteer was aware of the risks
of participation and assumed them. |
Celebrezze |
6/19/2014 |
2014-Ohio-2651 |
Levy v. Levy |
100609 |
R.C.
3105.18(C)(1)/modification of spousal support; jurisdiction; contempt;
R.C. 3105.73/attorney fees; abuse of discretion; arrearage. The
separation agreement and divorce decree expressly reserved the trial
court its right to retain jurisdiction to modify spousal support, and
the change in circumstance was not one contemplated. The trial court
did have jurisdiction. Although a reduction in spousal support was
warranted, the trial court abused its discretion in lowering the support
to the amount that it did. The trial court, given its broad discretion
in fashioning equitable relief, did not abuse its discretion in not
finding appellee in contempt. The trial court did not abuse its
discretion where neither party was found to not be without fault. |
Jones |
6/19/2014 |
2014-Ohio-2650 |
Huntington Natl. Bank v. Brown |
100567 |
Summary
judgment; foreclosure; MERS; standing; mortgage; note assignment;
endorsement. MERS has authority to assign a mortgage when it is
designated as both a nominee and mortgagee; a party may establish its
interest in the suit, and therefore have standing to invoke the
jurisdiction of the court when, at the time it files its complaint of
foreclosure, it either (1) has had a mortgage assigned or (2) is the
holder of the note; Huntington was the real party in interest, and
therefore had standing to bring this foreclosure action; the trial court
did not err in granting summary judgment in favor of Huntington. |
Celebrezze |
6/19/2014 |
2014-Ohio-2649 |
State v. Jackson |
100519 |
Postrelease
control; resentencing. Once the underlying sentence has been
completed, the trial court could no longer resentence a defendant to
correct its flawed imposition of postrelease control. |
McCormack |
6/19/2014 |
2014-Ohio-2648 |
State v. Lime |
100515 |
R.C.
2929.14(C); Consecutive Sentences. The trial court failed to comply
with R.C. 2929.14(C) by failing to make the requisite findings. |
Blackmon |
6/19/2014 |
2014-Ohio-2647 |
State v. Johnson |
100503 |
R.C.
2953.74(B)(1) and (2); application for postconviction DNA testing. The
trial court abused its discretion by denying the appellant’s application
for postconviction DNA testing because at the time of trial DNA testing
was not as sophisticated as it is presently. Also, the results of the
DNA testing would be “outcome determinative because only one perpetrator
committed the robbery and another person had confessed to committing
the robbery. |
Blackmon |
6/19/2014 |
2014-Ohio-2646 |
State v. Frost |
100498 |
Consecutive
sentence; statutory findings; the trial court’s duty upon remand. When
a criminal sentence is remanded for resentencing due to a trial court’s
failure to make all three statutory findings for consecutive
sentences, the scope of the remand is limited to the finding(s) lacking
at the original sentencing hearing. |
McCormack |
6/19/2014 |
2014-Ohio-2645 |
State v. Webb |
100487 |
theft
in office; R.C. 2921.41(A)(1); ineffective assistance; photo array;
unduly suggestive; refresh recollection; Evid.R. 612; impeach;
sufficiency; manifest weight. Appellant’s conviction for theft in
office in violation of R.C. 2921.41(A)(1) was affirmed where six
witnesses testified to giving money to a male bailiff, three of whom
were shown and identified appellant from a photo array, appellant was
the only male bailiff permanently assigned to the courtroom in which
they appeared, and a codefendant testified she and appellant cooperated
in stealing money from the Cleveland Municipal Court. Defense counsel
was not ineffective for withdrawing a motion to suppress identification
evidence when the photo arrays were not unduly suggestive. The state
properly used a prior statement to refresh the recollection of a witness
pursuant to Evid.R. 612, rather than to impeach the witness with a
prior inconsistent statement. Sufficient evidence was presented to show
the total amount stolen was greater than $500, and appellant’s
conviction was not against the manifest weight of the evidence. |
Gallagher |
6/19/2014 |
2014-Ohio-2644 |
State v. Earley |
100482 |
allied
offenses, aggravated vehicular assault, OVI, R.C. 2929.41(B)(3), double
jeopardy. Assuming arguendo that aggravated vehicular assault and OVI
are allied offenses, the General Assembly through R.C. 2929.41(B)(3)
created an exception that allows a trial court to impose a sentence for
both offenses. |
Keough |
6/19/2014 |
2014-Ohio-2643 |