CASE DECISION LIST Court of Appeals, Eighth Appellate District Page: 1 of 9. March 6, 2014

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1 Court of Appeals, Eighth Appellate District Page: 1 of 9 March 6, COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v JEREMY LOGAN Mary Eileen Kilbane, J., Kenneth A. Rocco, P.J., and Eileen A. Gallagher, J., Concur. KEY WORDS: Speedy Trial; Motion to Disqualify Counsel. Defendant s guilty plea waived speedy trial issues and also waived claim of ineffective assistance of counsel. In addition, counsel may continue the matter and waive speedy trial time without the consent of the defendant. Record demonstrated that defendant abandoned his motion to disqualify his trial counsel COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v MICHAEL P. COOPER Affirmed in part, reversed in part, and remanded. Tim McCormack, J., Patricia Ann Blackmon, P.J., and Melody J. Stewart, J., concur. KEY WORDS: Manifest weight; consecutive sentences. Appellant s convictions of burglary, menacing by stalking, and telecommunications harassment are not against the manifest weight of the evidence. The case, however, is remanded for the limited purpose of determining whether consecutive sentences are proper COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v DWAYNE HADDON Mary J. Boyle, A.J., Larry A. Jones, Sr., J., and Mary Eileen Kilbane, J., concur. KEY WORDS: R.C ; R.C ; probation violation. The trial court did not err when it sentenced the defendant to six years after he violated the terms of his probation.

2 Court of Appeals, Eighth Appellate District Page: 2 of COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v JOHN MOORE, JR. Sean C. Gallagher, J.; Melody J. Stewart, P.J., concurs in judgment only with separate opinion; Eileen A. Gallagher, J., dissents with separate opinion. KEY WORDS: consistency in felony sentencing; sentencing factors; R.C ; R.C ; R.C ; contrary to law standard of review; res judicata. The trial court considered all relevant factors to sentencing, was specifically made aware of the codefendants sentences, and imposed a sentence within the statutory ranges. Appellant s sentence is not, and cannot be deemed to be, contrary to law, and the standard of review for reviewing consistency in sentencing is contrary to law, not the abuse of discretion standard as appellant claimed. Further, the trial court undertook the appropriate consistency review, and any proportionality claims, especially in regard to either the consecutive sentences or the constitutional prohibition against cruel and unusual punishment, were forfeited COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v HOWARD JACKSON Tim McCormack, J., Larry A. Jones, Sr., P.J., and Eileen T. Gallagher, J., concur. KEY WORDS: Consecutive sentences; completed prison term; mootness; sexual predator classification; competent, credible evidence. Appellant s claim regarding his consecutive sentences is moot because he has completed his prison term. His claim regarding his sexual predator classification is without merit because the record contains competent, credible evidence to support the trial court s findings COMMON PLEAS COURT E CIVIL C.P.-NOT JUV,DOM OR PRO AMM PERIC PROPERTY INVEST.,INC.,ETAL v CITY OF CLEVELAND Reversed and remanded. Melody J. Stewart, P.J., Frank D. Celebrezze, Jr., J., concurs; Kathleen Ann Keough, J., dissents with separate opinion.

3 Court of Appeals, Eighth Appellate District Page: 3 of 9 KEY WORDS: Affirmative defense; burden of proof; exhaustion of administrative remedies; adequate remedy; summary judgment. Court erred by granting summary judgment on city s assertion of affirmative defense of exhaustion of administrative remedies because city failed to carry its burden, as movant for summary judgment, that administrative remedy provided an adequate remedy COMMON PLEAS COURT E CIVIL C.P.-NOT JUV,DOM OR PRO LOUISE CANTIE v HILLSIDE PLAZA, ET AL. Affirmed in part; dismissed in part. Patricia Ann Blackmon, J., Sean C. Gallagher, P.J., and Mary Eileen Kilbane, J., concur. KEY WORDS: Final appealable order; motion to stay and compel arbitration; waiver. Appellants argument that the court erred by denying his motion to dismiss for lack of subject matter jurisdiction is dismissed for lack of a final appealable order. Trial court did not err by denying the appellants motion to stay and compel arbitration because appellants waived arbitration by actively engaging in litigation COMMON PLEAS COURT H ADMIN APPEAL MATTHEW FARRAN v CITY OF CLEVELAND CIVIL SERV. COMM. Melody J. Stewart, J., Larry A. Jones, Sr., P.J., and Eileen A. Gallagher, J., concur. KEY WORDS: Administrative appeal; hearsay; evidence. Rules of Evidence do not apply in administrative appeals and decision to admit hearsay is not error. Questions going to the trustworthiness of hearsay evidence are not about admissibility, but weight COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v DOUGLAS ESPER Reversed and remanded for resentencing. Melody J. Stewart, J., Mary Eileen Kilbane, P.J., and Patricia Ann Blackmon, J., concur.

4 Court of Appeals, Eighth Appellate District Page: 4 of 9 (Case continued) KEY WORDS: Community control; violation; R.C (B)(5). Court erred by sentencing defendant to three years in prison for violation of community control sanction under R.C (B)(5) because it informed the defendant at the time it imposed community control that he could receive at least two years in prison for a violation COMMON PLEAS COURT E CIVIL C.P.-NOT JUV,DOM OR PRO NORTHERN FROZEN FOODS, INC. v RONALD E. MOTON, SR. Mary J. Boyle, A.J., Larry A. Jones, Sr., J., and Mary Eileen Kilbane, J., concur. KEY WORDS: Summary judgment; burden of proof; personal liability; venue and personal jurisdiction; forum-selection clause. Trial court properly granted plaintiff s unopposed motion for summary judgment; plaintiff established that defendant was personally liable on the account based on personal guaranty contained in agreement; forum selection clause expressly identified Cuyahoga County as proper venue COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v EDDIE DUDLEY Melody J. Stewart, J., Patricia Ann Blackmon, P.J., and Tim McCormack, J., concur. KEY WORDS: Costs; direct appeal; res judicata; R.C (A)(2). Principles of res judicata barred assertion of claim that court failed at the time of sentencing to order defendant to pay court costs because defendant could have, but did not, raise the issue on direct appeal and further failed to appeal when the court first denied his postconviction motion to vacate his sentence on that basis. In addition, even if not considered res judicata, the defendant s motion to vacate sentence, treated as a postconviction petition, was untimely filed under R.C (A)(2).

5 Court of Appeals, Eighth Appellate District Page: 5 of COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v RAYMOND J. SHEPHERD Reversed and Remanded. Kathleen Ann Keough, J., Frank D. Celebrezze, Jr., P.J., and Patricia Ann Blackmon, J., concur. KEY WORDS: aggravated robbery, robbery, lesser-included offense Defendant s conviction reversed; the trial court erred in finding the defendant guilty of robbery in violation of R.C (A)(1) as a lesser included offense of aggravated robbery in violation of R.C (A)(1) because the evidence did not reasonably support both acquittal of the greater offense and conviction of the lesser offense COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v DENETRIS SMITH Eileen T. Gallagher, J., Larry A. Jones, Sr., P.J., and Tim McCormack, J., concur. KEY WORDS: Sufficiency; manifest weight; self-defense. Misdemeanor and felonious assault convictions affirmed. There was sufficient evidence to sustain convictions and convictions were not against the manifest weight of the evidence where defendant admitted poking victim in shoulder with barbeque fork, and evidence showed defendant could have retreated and danger of harm was not imminent COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v CASSANDRA TILLMAN Sean C. Gallagher, P.J., Eileen A. Gallagher, J., and Melody J. Stewart, J., concur. KEY WORDS: robbery; force; insufficiency of the evidence. The trial court did not err in finding the defendant guilty of robbery by force in light of the fact the state presented evidence that the defendant pushed and attempted to punch a store employee to effect her escape.

6 Court of Appeals, Eighth Appellate District Page: 6 of COMMON PLEAS COURT E CIVIL C.P.-NOT JUV,DOM OR PRO LINDA M. SHORT v RESOURCE TITLE AGENCY, INC., ET AL. Affirmed and remanded. Patricia Ann Blackmon, J., Frank D. Celebrezze, Jr., P.J., and Kathleen Ann Keough, J., concur. KEY WORDS: Arbitration; R.C (D). Trial court did not err by vacating the arbitration award because it failed to draw its essence from the underlying contract. The arbitrator ignored the severance provision contained in the contract limiting damages if the employee was terminated without just cause COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v MAURICE MOWLER Eileen T. Gallagher, J., Larry A. Jones, Sr., P.J., and Tim McCormack, J., concur. KEY WORDS: Motion to suppress; warrantless arrest; probable cause; consent; sufficiency; complicity. Denial of motion to suppress affirmed. Warrantless arrest was lawful where police observed defendant participate in drug trafficking. Search of defendant s apartment was lawful because he consented to the search. There was sufficient to evidence to sustain drug trafficking and possession of criminal tools convictions where police observed defendant aiding and abetting co-defendants who received known narcotics from policeman disguised as FedEx delivery man JUVENILE COURT DIVISION F CIVIL C.P.-JUV, DOM, PROBATE IN RE: D.R JUVENILE COURT DIVISION F CIVIL C.P.-JUV, DOM, PROBATE IN RE: D.R. Dismissed. Eileen A. Gallagher, J., Patricia Ann Blackmon, J., concurs; Mary J. Boyle, A.J., dissents with separate opinion. KEY WORDS: Case dismissed; jurisdiction; final verdict.

7 Court of Appeals, Eighth Appellate District Page: 7 of 9 (Case continued) This court is without jurisdiction to hear the instant appeal; a Juv.R. 29(F)(2)(d) dismissal amounted to a final verdict to which double jeopardy attached COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v MICHAEL E. RIVAS Sean C. Gallagher, P.J., Eileen A. Gallagher, J., and Melody J. Stewart, J., concur. KEY WORDS: presentence report not mandatory; factors relevant to sentencing; referral to court s mental health docket; serious mental illness with psychotic feature. The trial court considered all the factors relevant to sentencing, including the defendant s mental health, and the defendant s trial attorney was not deficient in failing to refer defendant s case to the mental health docket because defendant was not diagnosed with a serious mental health illness with psychotic feature DOMESTIC RELATIONS F CIVIL C.P.-JUV, DOM, PROBATE ROSEANN COMELLA v WILLIAM FREDERICK PARRAVANO, JR. Tim McCormack, J., Larry A. Jones, Sr., P.J., and Eileen T. Gallagher, J., concur. KEY WORDS: Modification of spousal support; Change of circumstances; not contemplated; abuse of discretion; competent, credible evidence; R.C ; Civ.R. 53(D)(4)(d); res judicata. The trial court did not abuse its discretion in finding that a change of circumstances not contemplated by the parties warranted a modification of spousal support. The trial court did not abuse its discretion in overruling Wife s objections and adopting Magistrate s Decision granting Obligor Husband s motion for modification of spousal support. The trial court s decision is supported by competent, credible evidence COMMON PLEAS COURT E CIVIL C.P.-NOT JUV,DOM OR PRO HEATHER DUNCAN v CUYAHOGA COMMUNITY COLLEGE, ET AL.

8 Court of Appeals, Eighth Appellate District Page: 8 of 9 Reversed and remanded. Sean C. Gallagher, P.J., Eileen A. Gallagher, J., and Melody J. Stewart, J., concur. KEY WORDS: law of the case; mandate; intervening decision; extraordinary circumstances; immunity; R.C (B)(4); physical defect. Applying the law of the case doctrine, the trial court had no discretion to disregard the mandate issued in a prior appeal in the same case because the authority relied upon was not was an intervening decision and there was a lack of extraordinary circumstances. The requirement for a physical defect under the immunity exception in R.C (B)(4) has not been abrogated COMMON PLEAS COURT E CIVIL C.P.-NOT JUV,DOM OR PRO MARY JO CSONKA-CHERNEY v ARCELORMITTAL CLEVELAND INC., ET AL. Reversed and remanded. Mary J. Boyle, A.J., Sean C. Gallagher, J., and Kenneth A. Rocco, J., concur. KEY WORDS: Motion to compel; protective order; medical records; physician-patient privilege; waiver of privilege; R.C (B); Civ.R. 26(B)(1). The trial court is required to conduct an in camera inspection of medical records when there is a dispute as to whether they are causally or historically related COMMON PLEAS COURT E CIVIL C.P.-NOT JUV,DOM OR PRO LISA MONCRIEF, AS PERSONAL, ETC. v CATHLEEN R. BOHN, ET AL. Affirmed in part, reversed in part and remanded. Eileen T. Gallagher, J., Larry A. Jones Sr., P.J., and Tim McCormack, J., concur. KEY WORDS: Civ.R. 12(B)(6); sovereign immunity; political subdivision; R.C (B)(4); physical defect; breach of contract; R.C (B)(6) motion to dismiss affirmed in part and reversed in part. CMHA is a political subdivision pursuant to R.C (F) and R.C The operation of a public housing authority is a governmental function under R.C (C)(2). Exception to immunity provided in R.C (B)(4) for physical defects within or on the grounds of government buildings did not apply because injury was caused by a third party murderer rather than a physical defect in the building. Plaintiff s claim of inadequate security was

9 Court of Appeals, Eighth Appellate District Page: 9 of 9 (Case continued) not a physical defect. Per R.C (A), breach of contract claims are exempted from the immunity provisions. Complaint alleged breach of contract with sufficient detail to survive a Civ.R. 12(B)(6) dismissal.