May 5, Patricia Ann Blackmon, J.; Eileen A. Gallagher, P.J., and Tim McCormack, J., concur.

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1 Court of Appeals, Eighth Appellate District Page: 1 of 8 May 5, COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v DARIUS CLARK Convictions affirmed and remanded for resentencing. Patricia Ann Blackmon, J.; Eileen A. Gallagher, P.J., and Tim McCormack, J., concur. KEY WORDS: Child-victim's out-of-court statement, jury instructions, duplicitous indictment, multiple identical and undifferentiated counts, allied offenses, court costs. Defendant s convictions for felonious assault, endangering children, and domestic violence affirmed where one of the child-victims identified defendant as his abuser, the children were left in defendant s care when some of the injuries occurred, and the victims s mother testified that defendant stated the 18-month-old child must have burned herself with a hot comb. Matter remanded for limited resentencing hearing to address court costs JUVENILE COURT DIVISION F CIVIL C.P.-JUV, DOM, PROBATE IN RE: S.K.L. Reversed and remanded. Decision En Banc. Sean C. Gallagher, J.; Patricia Ann Blackmon, J., Mary J. Boyle, J., Larry A. Jones, Sr., A.J., Kathleen Ann Keough, J., Mary Eileen Kilbane, J., Anita Laster Mays, J., Tim McCormack, J., and Melody J. Stewart, J., concur; Eileen A. Gallagher, J., dissents with separate opinion in which Frank D. Celebrezze, Jr., J., and Eileen T. Gallagher, J., concur. KEY WORDS: Subject matter jurisdiction; jurisdictional priority; continuing jurisdiction; exclusive jurisdiction; concurrent jurisdiction; laches; estoppel; juvenile court; domestic relations court; parentage action. The fact that a domestic relations court maintains continuing jurisdiction over a parentage determination does not affect a juvenile court s jurisdiction to resolve parentage issues for children born out of wedlock COMMON PLEAS COURT E CIVIL C.P.-NOT JUV,DOM OR PRO GEAUGA SAVINGS BANK v RICHARD L. BERG, ET AL. Vacated and remanded. Patricia Ann Blackmon, J.; Anita Laster Mays, J., concurs; Mary Eileen Kilbane, P.J., dissents with attached opinion.

2 Court of Appeals, Eighth Appellate District Page: 2 of 8 (Case continued) KEY WORDS: Motion to dismiss, sua sponte, vacate default judgment, nunc pro tunc. Court erred by granting the plaintiff s motion to dismiss and sua sponte vacating its previous order granting the plaintiff default judgment in this foreclosure case. A default judgment is a final determination of the rights of the parties, and the court has no authority to sua sponte vacate a final judgment COMMON PLEAS COURT E CIVIL C.P.-NOT JUV,DOM OR PRO BARBARA K. WATKINS, INDIVIDUALLY AND AS EXECUTOR v AFFINIA GROUP, ET AL. Reversed. Eileen T. Gallagher, J., Eileen A. Gallagher, P.J., and Melody J. Stewart, J., concur. KEY WORDS: Daubert; expert testimony; Evid.R. 702; asbestos; mesothelioma; cause-in-fact; general causation; specific causation; scientific evidence; methodology; peer review; rate of error; gatekeeper; toxic torts; dose; threshold; exposure; cumulative; brakes; sanding; significant; substantial; substantial factor test; epidemiological studies; Helsinki Criteria; learned treatise; cautionary instruction; defective design. Trial court s judgment in favor of plaintiff is reversed. Trial court erred in denying defendant s motion in limine to exclude plaintiff s causation experts from testifying at trial where court failed to hold a Daubert hearing to assess the reliability of the experts theories COMMON PLEAS COURT E CIVIL C.P.-NOT JUV,DOM OR PRO STATE OF OHIO v ANTHONY APANOVITCH COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v ANTHONY APANOVITCH Larry A. Jones, Sr. A.J., Frank D. Celebrezze, Jr., P.J., and Anita Laster Mays, J., concur. KEY WORDS: R.C /postconviction relief; R.C /successive petitions for postconviction relief; law of the case doctrine; Valentine violation; bond. The law of the case doctrine is discretionary and the trial court acted within its discretion in not applying the law of the case doctrine where the trial court found that two out of three of the law of the case doctrine exceptions exists in this matter. Relying on the discussions on due process and double jeopardy in Valentine, the trial court did not err in determining that the indictment against appellant did not contain enough specificity on the rape charges that a retrial would not violate appellant s double

3 Court of Appeals, Eighth Appellate District Page: 3 of 8 (Case continued) jeopardy protections. The trial court did not abuse its discretion in setting appellant s bond PROBATE COURT DIVISION F CIVIL C.P.-JUV, DOM, PROBATE KEYBANK NATIONAL ASSOCIATION, TRUSTEE v HEATHER THALMAN, ET AL. Reversed and remanded. Anita Laster Mays, J., Kathleen Ann Keough, P.J., and Patricia Ann Blackmon, J., concur. KEY WORDS: Summary judgment; breach of fiduciary duty; breach of trust; attorney fees; abuse of discretion. The trial court erred in granting summary judgment when there are genuine issues of material fact regarding breach of fiduciary duty and breach of trust COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v LAURESE GLOVER COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v EUGENE JOHNSON COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v DERRICK WHEATT Affirmed and remanded. Mary J. Boyle, J., Eileen A. Gallagher, P.J., and Frank D. Celebrezze, Jr., J., concur. KEY WORDS: Leave to file a motion for new trial; Crim.R. 33(B); motion for a new trial; Brady violation; suppressed evidence; exculpatory and material evidence. The trial court properly granted defendants leave to file a motion for a new trial because defendants clearly and convincingly demonstrated that they were unavoidably prevented from discovering the evidence earlier to support their motion. The trial court did not err in granting defendants motion for a new trial based on the state s failure to disclose exculpatory and material evidence, in violation of Brady. Based on the record, a reasonable probability exists that the jury would have reached a different decision if the exculpatory evidence had been known at trial.

4 Court of Appeals, Eighth Appellate District Page: 4 of GARFIELD HTS. MUNI. C CRIMINAL MUNI. & CITY CITY OF GARFIELD HEIGHTS v ANTHONY C. FOSTER Kathleen Ann Keough, P.J., Tim McCormack, J., and Melody J. Stewart, J., concur. KEY WORDS: sovereign citizen, jurisdiction, R.C. Chapter 1901 Jurisdiction with the municipal court was proper where the defendant committed a misdemeanor infraction within the municipal boundaries of the city. Defendant s sovereign citizen argument is frivolous COMMON PLEAS COURT E CIVIL C.P.-NOT JUV,DOM OR PRO ESTATE OF IAN W. BLANDFORD v A.O. SMITH CORPORATION, ET AL. Affirmed in part, reversed in part, and remanded. Mary J. Boyle, J.; Patricia Ann Blackmon, J., concurs; Tim McCormack, P.J., dissents (with separate opinion). KEY WORDS: Summary judgment; Civ.R. 56; Ohio Product Liability Act; R.C ; supplier liability; strict liability; negligent failure to warn; judicial process; insolvency. The trial court did not err when it granted summary judgment to defendant-supplier on plaintiff s strict liability claims under R.C (B)(1) and (2) because the manufacturer was subject to personal jurisdiction and was not insolvent simply because it had filed for bankruptcy. But the trial court did err when it granted summary judgment to defendant-supplier on plaintiff s negligent failure to warn claim under R.C (A)(1) as genuine issues of material fact remain regarding (1) whether the defendant-supplier knew about the hazards of asbestos, (2) whether plaintiff was exposed to defendant-supplier s asbestos-containing products, and (3) whether those products were a substantial factor in causing plaintiff s harm COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v AARON MOORE Patricia Ann Blackmon, J.; Larry A. Jones, Sr., A.J., and Mary Eileen Kilbane, J., concur. KEY WORDS: Sufficiency; Manifest Weight; Amendment of Indictment. Based on the testimony of the witness the evidence in

5 Court of Appeals, Eighth Appellate District Page: 5 of 8 (Case continued) support of appellant s convictions were supported by sufficient evidence and not against the manifest weight of the evidence. The trial court did not err by allowing the prosecutor to amend the indictment during the trial to change the range of dates in which the abuse occurred. Crim.R. 7(D) allows the amendment during trial as long as the amendment does not change the name or identity of the offense COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v ALEX WILLIAMS Sean C. Gallagher, J., Kathleen Ann Keough, P.J., and Frank D. Celebrezze, Jr., J., concur. KEY WORDS: Felonious assault; manifest weight; inconsistent testimony. The felonious assault conviction was not against the manifest weight of the evidence solely based on the witnesses' disagreement over the particulars of the crime COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v RICHARD BARROW Kathleen Ann Keough, P.J., Sean C. Gallagher, J., and Frank D. Celebrezze, Jr., J., concur. KEY WORDS: Motion for Leave to File Motion for New Trial; Newly Discovered Evidence; Evidentiary Hearing; Findings of Fact and Conclusions of Law. Trial court did not abuse its discretion in denying defendant s motion for leave to file motion for new trial where the defendant did not produce any new evidence; trial court was not required to conduct an evidentiary hearing before ruling on the defendant s motion or issue findings of fact and conclusions of law COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v GERMAINE JOHNSON Mary Eileen Kilbane, J., Larry A. Jones, Sr., A.J., and Patricia A. Blackmon, J., concur.

6 Court of Appeals, Eighth Appellate District Page: 6 of 8 (Case continued) KEY WORDS: Merger of allied offenses; GSI; robbery; sentence; guilty plea; amended indictment; ineffective assistance of counsel. Judgment affirmed. GSI and robbery are of dissimilar import, the victim suffered separate and identifiable harms, and have a separate animus. Defendant s sentence is not contrary to law because the sentence is within the statutory range and the trial court s findings are supported in the record. Defendant knowingly and voluntarily assented to the amended indictment pursuant to his plea agreement, and defendant received effective assistance of counsel COMMON PLEAS COURT E CIVIL C.P.-NOT JUV,DOM OR PRO AYAN BURTON v CLEVELAND HTS. UNIVERSITY HTS. SCHOOL DIST. Sean C. Gallagher, J., Kathleen Ann Keough, P.J., and Frank D. Celebrezze, Jr., J., concur. KEY WORDS: Administrative appeal; expulsion; mootness doctrine. The dismissal, based on the mootness doctrine, of the graduated high school student s administrative appeal from his expulsion, which was held in abeyance in order for the student to timely graduate, was not in error COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v NICHOLAS L. ARMSTRONG Tim McCormack, P.J., Sean C. Gallagher, J., and Patricia Ann Blackmon, J., concur. KEY WORDS: Having weapons while under disability; R.C (A)(2); sufficient evidence; manifest weight of the evidence; self-defense. Appellant s conviction for having weapons while under disability in violation of R.C (A)(2) was supported by sufficient evidence, and the conviction was not against the manifest weight of the evidence. The evidence demonstrated appellant had a prior felony conviction and the appellant was in possession of a gun. Where the evidence showed appellant had the gun prior to the confrontation with the victim, the self-defense exception did not apply.

7 Court of Appeals, Eighth Appellate District Page: 7 of COMMON PLEAS COURT E CIVIL C.P.-NOT JUV,DOM OR PRO LAURA SYGULA v REGENCY HOSPITAL OF CLEVELAND, EAST, ET AL Anita Laster Mays, J., and Frank D. Celebrezze, Jr., J., concur; Eileen T. Gallagher, P.J., concurs in judgment only. KEY WORDS: Defamation; infliction of emotional distress; negligent reporting; malicious prosecution; wrongful termination. The appellant did not present evidence as to each element of defamation, including malice because the appellees had qualified immunity in reporting missing narcotics. There was not any evidence that the appellees inflicted emotional distress on the appellant because the appellees did not engage in a course of conduct with knowledge that appellant s injuries were certain or substantially certain to occur, and despite that knowledge, still proceeded with that course of conduct. The appellant did not present evidence to support the claim of negligent reporting because the appellees had reason to believe that the appellant engaged in criminal behavior. The Cuyahoga County Prosecutor s Office did not engage in malicious prosecution of the appellant because the appellant did not provide proof of the three essential elements of malicious prosecution: (1) malice in instituting or continuing the prosecution; (2) lack of probable cause; and (3) termination of the prosecution in favor of the accused. The appellant s claim for wrongful termination is dismissed because the appellant admittedly engaged in behavior contrary to hospital policy and regulations COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v DEONTE R. HALL Affirmed in part, reversed in part, and remanded. Larry A. Jones, Sr., A.J., Mary Eileen Kilbane, J., and Patricia Ann Blackmon, J., concur. KEY WORDS: Ineffective assistance of counsel; R.C /waiver of fine/misdemeanor. Appellant s reliance on R.C (B) is misplaced. Appellant was sentenced on a misdemeanor, not a felony, therefore, R.C is applicable here. Appellant failed to show that there exists a probability that the trial court would have found appellant indigent for the purpose of paying the fine and court costs where appellant testified that he had housing, his GED, and had held several jobs prior to his selling drugs. Appellant s counsel was not ineffective. The trial court erred in sentencing appellant to a six-month jail sentence as opposed to a 180-day jail sentence pursuant to R.C (A)(1).

8 Court of Appeals, Eighth Appellate District Page: 8 of COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v JERMAINE SPEARS Dismissed. Anita Laster Mays, J., Mary J. Boyle, P.J., and Patricia Ann Blackmon, J., concur. KEY WORDS: Anders brief requirements; motion to withdraw; wholly frivolous appeal. The court analyzed Anders brief submission for substantive compliance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). The court conducted an independent review of the entire record as well as a review of potential errors raised by counsel and determined that there is no merit to the appeal. The motion to withdraw is granted and the appeal is dismissed.