CASE DECISION LIST Court of Appeals, Eighth Appellate District Page: 1 of 9. November 7, 2013

Transcription

1 Court of Appeals, Eighth Appellate District Page: 1 of 9 November 7, COMMON PLEAS COURT E CIVIL C.P.-NOT JUV,DOM OR PRO ISABELLE H. BROWN, EXECUTOR, ETC. v SOLON POINTE AT EMERALD RIDGE,ET AL. Affirmed Mary Eileen Kilbane, J., Kenneth A. Rocco, P.J., and Eileen T. Gallagher, J., Concur KEY WORDS: Affidavit of Merit; Civ.R. 10(D)(2); motion for extension of time; good cause; savings statute; multiple refilings of complaint. Judgment is affirmed. Plaintiff s appeal of second filing of complaint was untimely as almost two years passed since the order was issued. The trial court s denial of plaintiff s motion for extension of time in third filing of complaint as moot was not an abuse of discretion as the court granted defendants motion for summary judgment. The grant of summary judgment was proper as plaintiff could only use the savings statute once to refile her complaint and the applicable statutes of limitations had expired COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v ROBERT DAVIS Patricia Ann Blackmon, J., Frank D. Celebrezze, Jr., J., and Eileen A. Gallagher, J., concur. KEY WORDS: Res judicata; nunc pro tunc entry. Res judicata prevents our review of appellant s assigned error because this court in the prior appeal discussed the issue surrounding the sentencing that appellant raises in the instant appeal COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v ANTHONY LILLIARD COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v ANTHONY LILLIARD COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v ANTHONY LILLIARD Larry A. Jones, Sr., J., Mary J. Boyle, P.J., and Patricia Ann Blackmon, J., concur. KEY WORDS: Motion to join indictments; motion to suppress

2 Court of Appeals, Eighth Appellate District Page: 2 of 9 (Case continued) identification testimony; Evid.R. 404(B)/other acts evidence; sufficiency; motion for acquittal; manifest weight. Where the evidence of other crimes was found to be admissible and appellant suffered no prejudice, the trial court did not err in joining the offenses. When testimony of other offenses is presented and appellant s counsel enters an objection, ineffective assistance of counsel is not present. Appellant was not denied due process where the identification procedures were compliant with the blind administrator requirement of R.C Where an individual brandishes a gun and implicitly threatens to discharge the firearm at the time of the offenses, the state s burden of proving that the firearm was operable or capable of being readily rendered operable is sustained. The record shows that all three victims were robbed in the same neighborhood under the same circumstances, and that all three victims identified appellant. The weight of the evidence supports appellant s convictions DOMESTIC RELATIONS F CIVIL C.P.-JUV, DOM, PROBATE MAURA A. KEHOE v ROBERT D. KEHOE, ET AL. Eileen A. Gallagher, J., Kenneth A. Rocco, P.J., Patricia Ann Blackmon, J., concur. KEY WORDS: Divorce, spousal support, attorney fees, res judicata, (C)(1), R.C On remand following a prior appeal of a divorce decree the trial court did not abuse its discretion because it followed the mandate of the remand and reached an equitable result in its orders of spousal support and attorney fees. The trial court did not err in ordering husband to pay a larger portion of student loan debt incurred due to his significantly greater income compared to wife COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v KIMBERLY N. BLACK Affirmed in part, reversed in part, and remanded. Larry A. Jones, Sr., J., Mary J. Boyle, P.J., and Patricia Ann Blackmon, J., concur. KEY WORDS: Abuse of discretion; plain error; allied offenses; reversible error; R.C /sentencing/mandatory factors.

3 Court of Appeals, Eighth Appellate District Page: 3 of 9 (Case continued) Plain error exists where the trial court failed to hold an allied offenses analysis COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v BRANDON ELLISON Frank D. Celebrezze, Jr., P.J., and Kenneth A. Rocco, J., concur; Sean C. Gallagher, J., concurs in judgment only. KEY WORDS: DNA evidence; hearsay testimony; Evid.R. 803(5); recorded recollection; hearsay-within-hearsay; harmless error; sufficiency of evidence; unlawful sexual conduct with minor; competency hearing. The trial court erred in permitting hearsay testimony for the purposes of authenticating the DNA evidence produced at trial; the error in permitting the hearsay testimony was harmless beyond a reasonable doubt; appellant s conviction was supported by sufficient evidence; the trial court did not abuse its discretion in failing to sua sponte order a competency hearing in the midst of trial COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v RONALD CARMAN Affirmed Mary Eileen Kilbane, J., Sean C. Gallagher, P.J., and Kathleen Ann Keough, J., Concur KEY WORDS: Guilty plea; sentence; consecutive; R.C (C); merger; waiver; stipulate offenses not allied. Judgment affirmed. Defendant s sentence was not contrary to law where trial court complied with the requirements of R.C (C). Furthermore, defendant waived issue of merger when defense counsel agreed at guilty plea hearing that the offenses did not merge CLEVELAND MUNI. G CIVIL MUNI. & CITY CITY OF CLEVELAND v AMAZING TICKETS, INC.

4 Court of Appeals, Eighth Appellate District Page: 4 of 9 Affirmed in part; reversed in part and remanded. Larry A. Jones, Sr., P.J., Mary Eileen Kilbane, J., and Eileen T. Gallagher, J., concur. KEY WORDS: Motion to vacate order; motion to dismiss; R.C (B)/jurisdiction; Cleveland Codified Ordinances Where there is improper service of process and a party has not appeared or otherwise waived service, a judgment rendered by the trial court is void. Failure to comply with any provision of Chapter 195 of the Cleveland Codified ordinances is a misdemeanor. The Cleveland Municipal Court had jurisdiction COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v ELIJAH SHEPHERD Kathleen Ann Keough, J., Sean C. Gallagher, P.J., and Mary Eileen Kilbane, J., concur. KEY WORDS: mandatory prison term; firearm specification, merger State is not required to elect which firearm specification a defendant should be sentenced on because the specifications carry mandatory prison time. The mandatory one-year specification is necessarily subsumed within the mandatory three-year specification. The offense of having a weapon while under disability is not an allied offense to a firearm specification.mandatory prison term; firearm specification, merger COMMON PLEAS COURT E CIVIL C.P.-NOT JUV,DOM OR PRO CITIMORTGAGE, INC. v WILLIAM T. GUARNIERI, ET AL. Frank D. Celebrezze, Jr., P.J., Eileen A. Gallagher, J., and Patricia A. Blackmon, J., concur. KEY WORDS: Foreclosure action; summary judgment granted; evidentiary material; clear chain of assignments from original lender; pending discovery requests; Civ.R. 56(F); motion to delay judgment. Appellant failed to present any evidence raising genuine issues of material fact pertaining to elements necessary for a successful foreclosure action; appellant failed to avail himself of remedies under Civ.R. 56(F) to delay judgment.

5 Court of Appeals, Eighth Appellate District Page: 5 of JUVENILE COURT DIVISION F CIVIL C.P.-JUV, DOM, PROBATE HEATHER BOTTUM v JACK JANKOVIC Frank D. Celebrezze, Jr., P.J., Larry A. Jones, Sr., J., and Eileen T. Gallagher, J., concur. KEY WORDS: Agreed entry; oral agreement on the record; settlement agreement; duress; undue influence; agreed parenting plan; R.C In a child custody dispute, the trial court did not err in adopting an agreed parenting plan orally set forth on the record in open court. The agreement of the parties was evident on the record and in the best interest of the child COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v LAUREN JONES Eileen A. Gallagher, J., Kenneth A. Rocco, P.J., and Patricia Ann Blackmon, J., concur. KEY WORDS: Judgment affirmed; motion to suppress; probable cause; search warrant; single trash pull. The judgment of the trial court is affirmed; a single-trash pull, without further corroborating evidence, does not supply sufficient probable cause to support the issuance of a search warrant COMMON PLEAS COURT E CIVIL C.P.-NOT JUV,DOM OR PRO KEVIN T. FINK, ET AL. v TWENTIETH CENTURY HOMES, INC., ET AL Sean C. Gallagher, J., Frank D. Celebrezze, Jr., P.J., and Kenneth A. Rocco, J., concur. KEY WORDS: summary judgment; political subdivision; immunity; exceptions; R.C (B)(2); negligence; proprietary; storm water; drainage; sewer system; maintain; ravine; erosion; governmental function; remedy; design; construction; public purpose; private property; trespass; nuisance. Summary judgment was properly granted in favor of the city of Brecksville and Cuyahoga County on the basis of political subdivision immunity with regard to claims asserting the appellees failed to properly maintain a storm-water drainage system in plaintiffs subdivision, which had an outlet pipe that emptied into a

6 Court of Appeals, Eighth Appellate District Page: 6 of 9 (Case continued) ravine located behind plaintiffs property. The ravine that was eroding behind the plaintiffs property and causing damage to their home existed naturally and was not part of the city s sewer system. The negligent-proprietary-function exception to immunity, R.C (B)(2), did not apply where the proposed remedy of plaintiffs expert necessarily required the reconstruction or redesign of the ravine and would require evaluation by an engineer. The design and construction of a storm-water runoff system constitutes a governmental function. Also, a city or a county has no duty to maintain a drainage system on private property if there is no indication that the system was ever used for public purposes. The immunity exceptions of R.C (B)(1) through (B)(4) are limited to negligent conduct and do not apply to trespass or nuisance claims COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v JOHN GILLEPSIE Frank D. Celebrezze, Jr., P.J., Eileen A. Gallagher, J., and Patricia A. Blackmon, J., concur. KEY WORDS: Allied offenses; plea agreement; aggravated robbery; theft; felonious assault; firearm specifications; R.C The trial court did not err in failing to merge aggravated robbery and felonious assault convictions committed with a separate animus against separate victims, and under R.C (B), the trial court could not merge the firearm specifications COMMON PLEAS COURT E CIVIL C.P.-NOT JUV,DOM OR PRO DIANE POLIVCHAK v POLIVCHAK CO., ET AL. Mary Eileen Kilbane, J., Larry A. Jones, P.J., and Eileen T. Gallagher, J., Concur KEY WORDS: Notice; sheriff s sale; R.C (B)(1); Loc.R. 27; certificate of notice; actual notice; confirmation of sale; appraisal; waiver. The trial court did not err in entering an order confirming sale over objections where the defendants claimed a technical violation of a local rule but suffered no prejudice as a result. The defendants also failed to timely object to the appraisal when the trial court could have addressed their arguments prior to sale.

7 Court of Appeals, Eighth Appellate District Page: 7 of COMMON PLEAS COURT E CIVIL C.P.-NOT JUV,DOM OR PRO WILFREDO CARABALLO v CLEVELAND METRO.SCHOOL DIST., ET AL. Affirmed in part; reversed in part and remanded. Larry A. Jones, Sr. P.J., Mary Eileen Kilbane, J., and Eileen T. Gallagher, J., concur. KEY WORDS: Motion to dismiss; statutory immunity; R.C (B)(4)/exception to immunity; R.C /defenses for political subdivisions. The trial court did not err in denying appellant s motion to dismiss where appellee showed he can prove any set of facts entitling him to relief COMMON PLEAS COURT E CIVIL C.P.-NOT JUV,DOM OR PRO JACQUES C. POMEROY, ET AL. v MARK SCHWARTZ, ET AL. Tim McCormack, J., Larry A. Jones, Sr., P.J., and Eileen T. Gallagher, J., concur. KEY WORDS: Breach of oral contract; unjust enrichment; statute of limitations. The trial court s granting of summary of judgment is proper as plaintiffs claims for breach of oral contract and unjust enrichment are barred by the statute of limitations COMMON PLEAS COURT E CIVIL C.P.-NOT JUV,DOM OR PRO PETER OGOLO v GREATER CLEVELAND REG. TRANS. AUTH. Frank D. Celebrezze, Jr., J., Melody J. Stewart, A.J., and Sean C. Gallagher, J., concur. KEY WORDS: Greater Cleveland Regional Transit Authority; motor vehicle accident; negligence; summary judgment granted; proximate cause; failure to provide competent medical testimony; expert testimony; causal connection; psychogenic-based symptoms; improper evidence; Civ.R. 56(C); medical records; sworn, certified, or entered by way of affidavit; harmless error. Appellant failed to provide required expert medical testimony to establish proximate cause of alleged injuries; trial court s consideration of improperly admitted medical records was harmless error because they were used to establish facts not disputed by appellant.

8 Court of Appeals, Eighth Appellate District Page: 8 of COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v ALCIVIADE DAVILA Reversed and remanded. Eileen T. Gallagher, J., Larry A. Jones, Sr., P.J., and Tim McCormack, J., concur. KEY WORDS: Consecutive sentences; findings; R.C (C)(4); proportionality. Consecutive sentences reversed because court failed to make finding that consecutive sentences are not disproportionate to the seriousness of defendant s conduct COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v CHASE DOWNEY Patricia Ann Blackmon, J., Frank D. Celebrezze, Jr., P.J., and E.A. Gallagher, J., concur. KEY WORDS: Agreed sentence; R.C (A). An agreed sentence is not appealable if authorized by law. Appellant argued the sentencing entry failed to adhere to the sentencing statutes by failing to enter a sentence on one count, failing to impose mandatory postrelease control, and by recommending and not ordering that the sentence be served concurrently with his federal sentence. The entry clearly imposes a sentence on count one and mandatory postrelease control. Recommending the sentence to be served concurrently with the federal sentence was not error COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v VIRGIL WHITE Sean C. Gallagher, P.J., Kenneth A. Rocco, J., and Mary Eileen Kilbane, J., concur. KEY WORDS: R.C ; R.C ; mitigating factors; presumption. Appellant did not overcome the presumption that the trial court considered the statutory mitigating factors contained in R.C (C). The trial court s journal entry and the sentencing transcript revealed that the trial court considered the statutory factors set forth in R.C and

9 Court of Appeals, Eighth Appellate District Page: 9 of COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v LARRY L. MCGEE Reversed and remanded. Tim McCormack, J., Larry A. Jones, Sr., P.J., and Eileen T. Gallagher, J., concur. KEY WORDS: Consecutive sentences; R.C (C)(4); findings; clearly and convincingly; contrary to law. The trial court failed to make the consecutive sentence findings required by R.C (C)(4), and therefore, the consecutive sentence imposed is clearly and convincingly contrary to law COMMON PLEAS COURT E CIVIL C.P.-NOT JUV,DOM OR PRO JENNIE BAILEY, ADMINISTRATOR v MANOR CARE OF MAYFIELD HTS.ETC.,ETAL Affirmed in part, reversed in part, and remanded. Larry A. Jones, Sr., J., Mary J. Boyle, P.J., and Patricia Ann Blackmon, J., concur. KEY WORDS: Motion to compel production of investigation and incident reports; motion for protective order. Where there is a question of privileged documents, an in camera review is warranted JUVENILE COURT DIVISION F CIVIL C.P.-JUV, DOM, PROBATE IN RE: R.M JUVENILE COURT DIVISION F CIVIL C.P.-JUV, DOM, PROBATE IN RE: N.H JUVENILE COURT DIVISION F CIVIL C.P.-JUV, DOM, PROBATE IN RE: J.H. Frank D. Celebrezze, Jr., P.J., Sean C. Gallagher, J., and Tim McCormack, J., concur. KEY WORDS: Permanent custody; R.C ; best interest of the child; clear and convincing evidence; ineffective assistance of counsel. The trial court s decision granting permanent custody to the state was supported by competent credible evidence in the record where father lacked housing or a means to provide for the children and failed to comply with drug testing after a positive drug test. Trial counsel was not constitutionally ineffective based on the arguments presented on appeal.