CASE DECISION LIST Court of Appeals, Eighth Appellate District Page: 1 of 9. September 20, 2012

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1 Court of Appeals, Eighth Appellate District Page: 1 of 9 September 20, COMMON PLEAS COURT E CIVIL C.P.-NOT JUV,DOM OR PRO CHRISTINE SHERIDAN, ET AL. v KEVIN M. SHERIDAN, ET AL. Affirmed in Part, Reversed in Part and Remanded. James J. Sweeeney, P.J., Kenneth A. Rocco, J., and Kathleen Ann Keough, J., Concur. KEY WORDS: Review of final, appealable orders in summary judgment proceedings. Validity of release; consideration; beneficiary of lienholder. Contents of affidavit pursuant to Civ.R 56. Tenants in common, rebuttable presumption of equal interests, question of fact COMMON PLEAS COURT E CIVIL C.P.-NOT JUV,DOM OR PRO AMTRUST NORTH AMERICA, INC. v NOVUS CREDIT SOLUTIONS, INC., ET AL. Patricia Ann Blackmon, A.J., Melody J. Stewart, J., and Eileen A. Gallagher, J., concur. KEY WORDS: Before the trial court can grant default judgment, Civ.R. 55 requires notice to the nonmoving party. Appellant had no notice of the default judgment hearing; therefore, default was improperly granted COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v KYLE J. PERRY Mary J. Boyle, P.J., Sean C. Gallagher, J., and Eileen A. Gallagher, J., concur. KEY WORDS: Motion to suppress; validity of affidavit; supporting search warrant; speedy trial COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v DWAYNE WALKER Convictions affirmed; sentence vacated in part; remanded for resentencing. Mary J. Boyle, P.J.; Mary Eileen Kilbane, J., concurs; Colleen Conway Cooney, J., concurs in judgment only.

2 Court of Appeals, Eighth Appellate District Page: 2 of 9 KEY WORDS: Trial court should not instruct the jury on the Castle Doctrine when the person using defensive force is not the defendant. Failure to object to leading questions will almost never rise to the level of ineffective assistance of counsel. Failure to object is generally viewed as trial strategy and will not establish a claim of ineffective assistance of counsel. Aggravated robbery and aggravated burglary are not allied offenses of felony murder when there is a substantial increase in the risk of harm to the victims such that a separate animus exists for the offenses. Trial court errs when sentencing defendant to consecutive sentences without making the required findings under R.C (C)(4) COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v GERALD STROTHERS Eileen A. Gallagher, J., James J. Sweeney, P.J., and Sean C. Gallagher, J., concur. KEY WORDS: State presented sufficient evidence to convict appellant of promoting prostitution and possessing criminal tools; appellant failed to properly notify the appellate court of his intention to appeal the denial of his motion to suppress; the trial court did not abuse its discretion in allowing opinion testimony of non-expert, or lay, witnesses COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v TIMOTHY TATE Eileen A. Gallagher, J., and Kenneth A. Rocco, J., concur; Frank D. Celebrezze, Jr., P.J., dissents with separate opinion. KEY WORDS: When a trial counsel s alleged errors amount to nothing more than trial strategy and harmless error, appellant has failed to show they were ineffectively assisted by counsel; appellate courts may review plain error sua sponte COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v MICHAEL WILLIAMS Eileen A. Gallagher, J., Kenneth A. Rocco, P.J., and Mary Eileen Kilbane, J., concur.

3 Court of Appeals, Eighth Appellate District Page: 3 of 9 KEY WORDS: Appellant has failed to show he received ineffective assistance of counsel; appellant has also failed to show that the evidence against him was insufficient or that his conviction was against the manifest weight of the evidence COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v LAWRENCE B. JACKSON Affirmed in part, reversed in part, remanded. Sean C. Gallagher, J., Melody J. Stewart, P.J., and Colleen Conway Cooney, J., concur. KEY WORDS: Defendant s conviction for escape is not supported by sufficient evidence because the state failed to prove the element of detention required under R.C (A)(1). The offenses of resisting arrest and escape are separate and distinct. Defendant s convictions for drug possession, drug trafficking, obstructing official business, assault, and possession of criminal tools are not against the manifest weight of evidence, and are supported by sufficient evidence. Discovery of readily accessible drugs and criminal tools in proximity to a person constitutes circumstantial evidence that the person was in constructive possession of the drugs and tools COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v DALONTE L. WATKINS Affirmed Mary Eileen Kilbane, J., Kenneth A. Rocco, P.J., and Eileen A. Gallagher, J., Concur. KEY WORDS: Defendant s burglary conviction affirmed. The likely to be present element found in R.C (A)(2) was met when evidence at trial established that occupant was on vacation, but asked her grandfather to periodically check on the house and he had checked on the house the day before the robbery. Furthermore, the trial court did not abuse its discretion by denying defendant s motion for a trial continuance because it was defendant s ninth request for a continuance and the text message authentication could have been completed before trial COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v MAURICE JACKSON

4 Court of Appeals, Eighth Appellate District Page: 4 of 9 Frank D. Celebrezze, Jr., P.J., Larry A. Jones, Sr., J., and Colleen Conway Cooney, J., concur. KEY WORDS: Multiple, successive plea withdrawal motions are barred by res judicata when founded on information that was known at the time an original appeal should have been perfected COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v JOHN J. SAPLAK Conviction affirmed; sentence vacated and remanded for resentencing. Mary Eileen Kilbane, J., Kenneth A. Rocco, P.J., and Kathleen A. Keough, J., Concur. KEY WORDS: Amendments to R.C apply to a person who commits the offense on or after September 30, 2011, the effective date of H.B. 86. R.C does not provide for a defendant to receive the benefit of a lesser or reduced offense. Under R.C.1.58, defendant is entitled to receive the reduced penalty for a first-degree misdemeanor based on R.C and H.B. 86 s amendments to R.C JUVENILE COURT DIVISION F CIVIL C.P.-JUV, DOM, PROBATE IN RE: N.P JUVENILE COURT DIVISION F CIVIL C.P.-JUV, DOM, PROBATE IN RE: R.W JUVENILE COURT DIVISION F CIVIL C.P.-JUV, DOM, PROBATE IN RE: E.W JUVENILE COURT DIVISION F CIVIL C.P.-JUV, DOM, PROBATE IN RE: T.W. Affirmed in part, reversed in part, and remanded. Eileen A. Gallagher, J., James J. Sweeney, P.J., and Sean C. Gallagher, J., concur. KEY WORDS: Judgment affirmed; the grant of permanent custody is supported by competent credible evidence and is supported by the manifest weight of the evidence; the court erred in failing to terminate the parental rights of one father.

5 Court of Appeals, Eighth Appellate District Page: 5 of JUVENILE COURT DIVISION F CIVIL C.P.-JUV, DOM, PROBATE IN RE: N.P JUVENILE COURT DIVISION F CIVIL C.P.-JUV, DOM, PROBATE IN RE: R.W JUVENILE COURT DIVISION F CIVIL C.P.-JUV, DOM, PROBATE IN RE: E.W JUVENILE COURT DIVISION F CIVIL C.P.-JUV, DOM, PROBATE IN RE: T.W. Affirmed in part, reversed in part, and remanded. Eileen A. Gallagher, J., James J. Sweeney, P.J., and Sean C. Gallagher, J., concur JUVENILE COURT DIVISION F CIVIL C.P.-JUV, DOM, PROBATE IN RE: E.W JUVENILE COURT DIVISION F CIVIL C.P.-JUV, DOM, PROBATE IN RE: T.W. Affirmed in part, reversed in part, and remanded. Eileen A. Gallagher, J., James J. Sweeney, P.J., and Sean C. Gallagher, J., concur ROCKY RIVER MUNI. G CIVIL MUNI. & CITY THEODOROU REAL ESTATE VENTURES, LLC v JACQUELINE ROGERS James J. Sweeney, P.J., Eileen A. Gallagher, J., Concur. Sean C. Gallagher, J., Dissents. (See attached dissenting opinion). KEY WORDS: Damage award in small claims case affirmed as it was within the court s discretion COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v JOSEPH VERTOCK Melody J. Stewart, J., Patricia Ann Blackmon, A.J., and Eileen A. Gallagher, J., concur.

6 Court of Appeals, Eighth Appellate District Page: 6 of 9 KEY WORDS: A juvenile adjudicated delinquent for sex offenses prior to the AWA cannot be subsequently classified under the AWA. There can be no sanctions for failure to register or report when an AWA classification is determined to be unlawful and defendant has not been classified under Megan s Law JUVENILE COURT DIVISION F CIVIL C.P.-JUV, DOM, PROBATE IN RE: L.R.F. v. Frank D. Celebrezze, Jr., P.J., Larry A. Jones, Sr., J., and Colleen Conway Cooney, J., concur. KEY WORDS: Juvenile adjudication of delinquency for rape in violation of R.C (A)(2) was not supported by sufficient evidence; the prosecution failed to establish that appellant purposely compelled the minor child to submit to the sexual conduct by force or threat of force COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v ALICIA MONTAGUE Melody J. Stewart, J., Patricia Ann Blackmon, A.J., and Mary J. Boyle, J., concur. KEY WORDS: Defendant was not subjected to a custodial interrogation that required that she be read her Miranda rights when she voluntarily accompanied the police to the police station, was not physically restrained in any way, was questioned in a conference room and immediately told that she was not a suspect, and there were no indicia of coercion present that would indicate that her presence was involuntary COMMON PLEAS COURT E CIVIL C.P.-NOT JUV,DOM OR PRO J'LEXXYS DICKERSON, ET AL v CUYAHOGA METROPOLITAN HOUSING AUTHOR Kenneth A. Rocco, P.J., Kathleen Ann Keough, J., and Mary Eileen Kilbane, J., concur. KEY WORDS: Trial court properly granted relief from a final judgment entered by mistake and later vacated via a sua sponte order that court of appeals overturned. Counsel s affidavit explaining reasons for reliance on the trial court s sua sponte

7 Court of Appeals, Eighth Appellate District Page: 7 of 9 (Case continued) order, rather than filing an appeal of the final judgment, met requirements for Civ.R. 60(B)(1) motion COMMON PLEAS COURT E CIVIL C.P.-NOT JUV,DOM OR PRO FRANK MCDOUGAL v DR. FRANK VECCHIO, ET AL. Sean C. Gallagher, J., James J. Sweeney, P.J., and Eileen A. Gallagher, J., concur. KEY WORDS: The four-year limitations period under R.C (C) commences to run when the complainant has discovered, or should have discovered in the exercise of reasonable diligence, the alleged fraud. The trial court did not err in granting summary judgment in favor of appellee because if appellant expected an inheritance, he should have read for himself the decedent s estate documents upon either learning of his disinheritance or taking physical possession of the documents COMMON PLEAS COURT E CIVIL C.P.-NOT JUV,DOM OR PRO TABIOUS HARRIS v KEVIN CROSBY, ET AL. Mary J. Boyle, P.J., Colleen Conway Cooney, J., and Mary Eileen Kilbane, J., concur. KEY WORDS: Res judicata COMMON PLEAS COURT E CIVIL C.P.-NOT JUV,DOM OR PRO ROGER WILSON v CITY OF CLEVELAND, ET AL. Eileen A. Gallagher, J., Patricia Ann Blackmon, A.J., and Melody J. Stewart, J., concur. KEY WORDS: When a political subdivision is entitled to immunity, summary judgment should be granted on their behalf unless an exception to this immunity can be shown; Sidewalks are no longer an exception to political subdivision immunity.

8 Court of Appeals, Eighth Appellate District Page: 8 of JUVENILE COURT DIVISION F CIVIL C.P.-JUV, DOM, PROBATE IN RE: R.M., III JUVENILE COURT DIVISION F CIVIL C.P.-JUV, DOM, PROBATE IN RE: A.M. Patricia Ann Blackmon, A.J., Kenneth A. Rocco, J., and Kathleen Ann Keough, J., concur. KEY WORDS: Trial court did not abuse its discretion by awarding custody of the children to CCDCFS. Mother has refused to comply with plan by receiving parenting classes and counseling. One of the children has severe medical problems and is mentally delayed. Therefore, it is in their best interest to be with families that can give them the appropriate care and supervision COMMON PLEAS COURT E CIVIL C.P.-NOT JUV,DOM OR PRO PNC BANK, N.A., SUCCESSOR IN, ETC. v DENNIS C. MAY, ET AL. Sean C. Gallagher, J., Melody J. Stewart, P.J., and Colleen Conway Cooney, J., concur. KEY WORDS: In granting plaintiff bank s motion for summary judgment, the trial court erred in not considering parol evidence in light of ambiguity created by defendant owner s failure to check the guarantor box on a business s credit application COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v THOMAS SMITH, SR. James J. Sweeney, P.J., Eileen A. Gallagher, J., Concur. Sean C. Gallagher, J., Concurs in Judgment Only. KEY WORDS: Court s granting defendant s motion to suppress evidence affirmed, because deference given to court s finding that detective s testimony lacked credibility. Court s granting defendant s motion to suppress evidence affirmed, because deference given to court s finding that detective s testimony lacked credibility.

9 Court of Appeals, Eighth Appellate District Page: 9 of DOMESTIC RELATIONS F CIVIL C.P.-JUV, DOM, PROBATE TRACI E. KONTRA v STEVEN F. KONTRA Sean C. Gallagher, J., James J. Sweeney, P.J., and Eileen A. Gallagher, J., concur. KEY WORDS: divorce; parental rights and responsibilities; R.C (F)(1); R.C (F)(2); best interest; abuse of discretion COMMON PLEAS COURT E CIVIL C.P.-NOT JUV,DOM OR PRO MORGAN STANLEY CREDIT CORP.,ETC. v JUDY M. FILLINGER, AKA, ETC., ET AL. Eileen A. Gallagher, J., and James J. Sweeney, P.J., concur; Sean C. Gallagher, J., concurs with separate opinion. KEY WORDS: Judgment affirmed; a party cannot assign as error on appeal an error not objected to at the trial court; failure to plead each element of a claim of fraud is fatal and a motion to dismiss will be granted; Fillinger s marshalling of liens claim was not properly pled; and a party may not notice the deposition of a non-party witness.