CASE DECISION LIST Court of Appeals, Eighth Appellate District Page: 1 of 6. October 17, 2013

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1 Court of Appeals, Eighth Appellate District Page: 1 of 6 October 17, COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v JAMES DZELAJLIJA Convictions Affirmed; Remanded Mary Eileen Kilbane, J., Mary J. Boyle, P.J., and Kenneth A. Rocco, J., Concur KEY WORDS: Robbery, R.C Defendant s convictions for robbery were not against the manifest weight of the evidence. Robbery, R.C Defendant s convictions for robbery were not against the manifest weight of the evidence COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v TONY GOODWIN Affirmed in part, reversed in part, and remanded. Frank D. Celebrezze, Jr., J., Melody J. Stewart, A.J., and Sean C. Gallagher, J., concur. KEY WORDS: Plain error; incorrect jury instructions; incorrect jury verdict forms; manifest weight; motion to suppress; knowing and intelligent waiver of Miranda rights. The trial court committed plain error in elevating appellant s felony conviction to a first-degree felony based on its incorrect recitation of the relevant statute during its instructions to the jury and in the jury verdict forms; appellant s conviction for discharging a firearm on or near a prohibited premises was not against the manifest weight of the evidence; the trial court did not err in denying appellant s motion to suppress; appellant s waiver of his Miranda rights was knowingly and intelligently given; the trial court did not abuse its discretion in accepting the jury s verdict COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v BRIAN LUMBUS, JR. Reversed and remanded. Mary J. Boyle, P.J., Kathleen Ann Keough, J., and Tim McCormack, J., concur. KEY WORDS: Guilty plea; agreed sentence; Crim.R. 11.

2 Court of Appeals, Eighth Appellate District Page: 2 of 6 (Case continued) A plea is not knowingly, voluntarily, and intelligently entered into if a trial court fails to give a defendant notice at his or her plea hearing that it might deviate from an agreed sentence, and the record shows that the defendant had a reasonable expectation of receiving the agreed sentence COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v MARK A. LEWIS Mary J. Boyle, P.J., Kathleen Ann Keough, J., and Tim McCormack, J., concur. KEY WORDS: Sentencing Factors; R.C Trial courts may consider prior criminal conduct at a defendant s sentencing hearing, even if the conduct was an uncharged, prior act, especially if the defendant admits that he committed the prior, uncharged act COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v EDWARD C. CRIDER Affirmed in part, reversed in part, and remanded for resentencing. Tim McCormack, J., Kenneth A. Rocco, P.J., and Mary Eileen Kilbane, J., concur. KEY WORDS: Abduction; attempted gross sexual imposition; allied offenses; R.C ; consecutive sentences; R.C (C); disproportionate. The abduction and attempted gross sexual imposition of a 12-year-old girl are not allied offenses of similar import subject to merger under R.C The trial court failed to make necessary finding of proportionality required under R.C (C). The consecutive sentence is, therefore, contrary to law. We reverse and remand for the limited purposes of determining whether consecutive sentences are appropriate and making the necessary findings.

3 Court of Appeals, Eighth Appellate District Page: 3 of COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v CHARLES D. BARNETT Mary J. Boyle, P.J., Eileen T. Gallagher, J., concurs; Sean C. Gallagher, J., concurs in judgment only with separate opinion. KEY WORDS: Consecutive sentences; findings; ineffective assistance of counsel. Trial court fully engaged in the required analysis and fulfilled the statutory requirements of R.C (C)(4) to impose consecutive sentences. Defendant was not denied effective assistance of counsel at sentencing. Trial counsel s representation was not deficient COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v DAVID LASALLA Affirmed in part, reversed in part, and remanded. Tim McCormack, J., Eileen A. Gallagher, P.J., and Mary Eileen Kilbane, J., concur. KEY WORDS: R.C ; RICO; theft; allied offense; mortgage fraud. Defendant s RICO offense does not merge with the predicate offense of theft COMMON PLEAS COURT E CIVIL C.P.-NOT JUV,DOM OR PRO VASOULA KYRKOS, ET AL. v SUPERIOR BEVERAGE GRP,LTD.,ET AL. Affirmed in part, reversed in part, and remanded. Eileen T. Gallagher, J., Melody J. Stewart, A.J., and Kathleen Ann Keough, J., concur. KEY WORDS: Preliminary injunction; non-compete agreement; surety bond; Civ.R. 65(C). Preliminary injunction reversed because plaintiffs failed to demonstrate they would suffer irreparable harm without the preliminary injunction. Harm or threat of harm is not irreparable if money damages can serve as an adequate remedy. Plaintiffs established a specific amount of monetary loss during the first 12 months after employee left plaintiff s company and worked for

4 Court of Appeals, Eighth Appellate District Page: 4 of 6 (Case continued) competitor. Further, the covenant not to compete was unreasonable under the circumstances of this case because employee was separated from plaintiffs employ for 18 months before preliminary injunction became effective and any benefit plaintiffs would gain from the injunction was disproportionate to the detriment suffered by employee. Court s refusal to set bond at $500,000 affirmed. Bond is required before preliminary injunctions become effective to secure the enjoined party from loss sustained as a result of an improvidently issued injunction. However, enjoined party is only entitled to the amount of provable damages and enjoined party failed to prove potential losses of $500, COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v GARETH C. WEBLEY Tim McCormack, J., Kenneth A. Rocco, P.J., and Mary Eileen Kilbane, J., concur. KEY WORDS: Protection order; R.C ; R.C The trial court's granting of a protection order under R.C ("Motion for protection order as pretrial condition of release") did not prejudice defendant even though the victim was a household member and the protection order could have been granted under R.C , which authorizes protection order for victims who are household members COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v CHARLES SCOTT, III Tim McCormack, J., Eileen A. Gallagher, P.J., and Mary Eileen Kilbane, J., concur. KEY WORDS: Sufficient evidence; failure to comply; willfully; R.C ; furthermore specification; substantial risk; jury instructions; inconsistent verdict. There was sufficient evidence to convict appellant of failure to comply and the furthermore specification of operating a motor vehicle in such a manner as to cause a substantial risk of serious physical harm. We find no error in the trial court s jury instructions. The verdict is consistent.

5 Court of Appeals, Eighth Appellate District Page: 5 of C CRIMINAL MUNI. & CITY CITY OF CLEVELAND v ROCKWELL DUMAS Reversed and Remanded Mary Eileen Kilbane, J., Kenneth A. Rocco, P.J., and Tim McCormack, J., Concur KEY WORDS: Cleveland Codified Ordinances Section ; Cleveland Codified Ordinances Section Conviction for driving under the influence was supported by insufficient evidence. Conviction for driving under suspension was supported by insufficient evidence COMMON PLEAS COURT E CIVIL C.P.-NOT JUV,DOM OR PRO NICHOLAS TOROS, ADMINISTRATOR v CUY.CTY.BD. OF DEV.DISABILITIES,ETAL Patricia Ann Blackmon, J., Eileen A. Gallagher, J., concurs; Frank D. Celebrezze, Jr., P.J., concurs in judgment only. KEY WORDS: The trial court did not err by allowing the appellees to amend their motion for summary judgment because the amendments were minor; trial court did not abuse its discretion by refusing to strike the appellees reply brief; trial court did not err by granting summary judgment in favor of appellees because sovereign immunity protected them from liability; R.C did not expressly impose liability upon a political subdivision pursuant to the exception to immunity set forth in R.C (B)(5); the appellees decisions in caring for the appellant involved a high level of judgment and discretion providing a defense to liability; the employees did not act in a wanton or reckless manner. Sovereign immunity; R.C (B)(5); R.C COMMON PLEAS COURT E CIVIL C.P.-NOT JUV,DOM OR PRO THIRD FEDERAL SAVINGS & LOAN, ETC. v JEAN BALDWIN RAINS, ET AL. Affirmed Mary Eileen Kilbane, J., Kenneth A. Rocco, P.J., and Tim McCormack, J., Concur KEY WORDS: Motion to vacate a void judgment, foreclosure, standing, real party in interest, unendorsed note; note endorsed in blank. Trial court s denial of defendant s motion to vacate void judgment affirmed. Bank had standing at the time its foreclosure complaint

6 Court of Appeals, Eighth Appellate District Page: 6 of 6 (Case continued) was filed. The attached note was unendorsed and was payable to the bank. The endorsed in blank version defendant attached to her brief in opposition to bank s motion for summary judgment and motion to vacate void judgment also established that the bank had standing because the bank was in possession of bearer paper COMMON PLEAS COURT E CIVIL C.P.-NOT JUV,DOM OR PRO YOOFI OCRAN, ET AL. v SUSAN RICHLAK, ADMIN., ETC., ET AL. Reversed and remanded. Tim McCormack, J., Kenneth A. Rocco, P.J., and Mary Eileen Kilbane, J., concur. KEY WORDS: Abuse of discretion; Civ.R. 41(B)(1); failure to prosecute; with prejudice; notice; lesser sanctions; egregious conduct. Trial court abused its discretion in dismissing appellant s case with prejudice for failure to appear at final pretrial.