11/16/2017


Case Caption

Case No.Topics and IssuesAuthorDecided
Ayers v. Cleveland 105074R.C. 2744.07(A)(2); standing; indemnification; summary judgment; reverse; remand; enforce; judgment; federal; jurisdiction; bankruptcy; conflict; debt; employee; harmless; political subdivision; liability; duty; rights; good faith; scope of employment; private cause of action; legislative intent; zone of interest; judgment creditor; third party; statutory interpretation. R.C. 2744.07(A)(2) does not provide judgment creditors with a private cause of action against a political subdivision to enforce its statutory obligation to indemnify its employee. The trial court erred in granting summary judgment in favor of the judgment creditor.Gallagher 11/16/2017
State v. Stuart 105050Anders brief, withdraw, dismissed. Appointed counsel's motion to withdraw granted and appeal dismissed where appointed counsel filed an Anders brief asserting there were no legal points of arguable merit to raise on appeal, and this court agreed after conducting an independent review of the record.Keough 11/16/2017
State v. Chandler 105246Evid.R. 404(B); impeachment; Evid.R. 608(B); excessive sentence; firearm specifications; self-defense of another; castle doctrine; R.C. 2901.05(B); jury instructions; sufficiency of the evidence; manifest weight of the evidence. The trial court denied the state's motion to admit Evid.R. 404(B) evidence but allowed the state to impeach the defendant at trial under Evid.R. 608(B), and therefore defendant's argument regarding the admission of Evid.R. 404(B) evidence is without merit. Defendant's claim that his sentence is excessive cannot be entertained when the trial court imposed the statutory minimum. There is no error in requiring the parties to refer to firearm specifications without reference to the ultimate sentence in front of the jury. Defendant failed to identify evidence demonstrating the need to instruct the jury on defense of another and the castle doctrine under R.C. 2901.05(B). There is sufficient evidence underlying the defendant's conviction, which is also not against the manifest weight of the evidence.Gallagher 11/16/2017
State v. Hammond 105297Murder; felonious assault; having a weapon while under disability; competency; R.C. 2945.37(G); amnesia; short-term memory; impairment; assist in defense; ineffective assistance; dying declaration; Evid.R. 804(B)(2); circumstantial evidence; reasonable inference; sufficiency; manifest weight. Trial court's determination that appellant was competent to stand trial was supported by reliable and credible evidence. Although appellant suffered amnesia and short term memory impairment, the experts agreed he was able to understand the proceedings against him, and one of the experts opined that appellant could make reasonable decisions and would be able to assist in his own defense with certain accommodations being provided. Defense counsel did not render ineffective assistance for failing to object to dying declaration where reasonable inferences could be drawn from the circumstances surrounding the victim's death. There was sufficient evidence supporting appellant's convictions for murder, two counts of felonious assault, and having a weapon while under disability, and his convictions were not against the manifest weight of the evidence.Gallagher 11/16/2017
Dickson v. Dickson 105318Civ.R. 60(B); motion for relief from judgment; motion to stay execution of judgment; post-trial discovery; entitlement to discovery; operative facts. Appellant failed to support a motion for relief from judgment with any operative facts or conclusions of law. Where the motion failed to satisfy any of the requirements of Civ.R. 60(B), the trial court did not err in not allowing discovery, failing to hold a hearing, and denying the motion.Celebrezze 11/16/2017
Fourtounis v. Verginis 105349Default judgment; answer; Civ.R. 55(A); Civ.R. 6(B)(2); abuse of discretion; excusable neglect; summary judgment; statute of limitations; cognizable event; malicious civil prosecution; third-party legal malpractice; vicarious liability; malice; reasonable inference; speculative. Trial court's decision to deny default judgment under Civ.R. 55(A) was affirmed upon finding the trial court did not abuse its discretion by deeming the answer timely in accordance with Civ.R. 6(B)(2) when considering all the surrounding facts and circumstances, excusable neglect in filing the answer late was demonstrated. Trial court's decision to grant summary judgment on claims of malicious civil prosecution, third-party legal malpractice, and vicarious liability was affirmed because appellants failed to create a genuine issue of material fact as to whether attorney knew of a settlement agreement prior to filing a replevin action, evidence relied upon by appellants failed to support any reasonable inference of malice, and their argument was purely speculative.Gallagher 11/16/2017
State v. Pierce 105389Escape; R.C. 2921.34; harassment by inmate; R.C. 2921.38; jury verdict form; R.C. 2945.75; due process; Batson challenge; sufficiency; jury instruction; plain error; Crim.R. 52. The jury's verdict form for the escape offense did not state the degree of the offense nor state that an aggravating element - the most serious offense for which appellant was under detention when he committed the escape offense - was found; thus, the verdict form failed to comply with R.C. 2945.75. Appellant's escape conviction is reduced from a third-degree felony to a fifth-degree felony. The trial court's denial of defense counsel's Batson challenge was not clearly erroneous. The trial court did not commit plain error by failing to provide an intoxication instruction, sua sponte, to the jury. Appellant's convictions for harassment by inmate are supported by sufficient evidence. Celebrezze 11/16/2017
State v. Bridges 105547Consecutive sentences; findings under R.C. 2929.14(C)(4); robbery; having a weapon under disability; allied offenses of similar import; merger; waiver; forfeiture; plain error. Trial court's findings supporting the imposition of consecutive sentencing were not clearly and convincingly not supported by the record. Defendant waived allied offense issue because transcript demonstrated that the state and defense counsel had agreed that offenses were not allied. Even if Bridges had not waived the allied offense issue, because no objection was raised regarding the merger of these offenses below, he forfeited all but plain error. There was no plain error in trial court' failure to merge robbery and having weapons under disability offenses for sentencing purposes.Gallagher 11/16/2017
In re M.W. 105565Permanent custody; clear and convincing; manifest weight; domestic violence; special needs; best wishes; relevant factors; guardian ad litem; R.C. 2151.414(D)(1). Affirmed the trial court's decisions awarding permanent custody of children to CCDCFS and terminating parental rights where mother failed to attend all but one of the children's appointments for special needs over a two-year period, concerns remained, and witnesses opined that mother was not ready to reunify with the children. The trial court considered all relevant factors, and its best-interest determination was supported by clear and convincing evidence and was not against the manifest weight of the evidence in the record.Gallagher 11/16/2017
State v. Ellis 105705Murder; involuntary manslaughter; pro se; res judicata; law of the case. The trial court properly denied defendant-appellant's pro se postconviction motion to correct his sentence. Defendant-appellant's arguments attacking his convictions for murder and involuntary manslaughter, which this court affirmed in his direct appeal, were both unpersuasive and were barred by the doctrines of res judicata and the law of the case.Kilbane 11/16/2017
Dickson v. Gorski 105779Civ.R. 12(C); guardian ad litem; absolute immunity. A guardian ad litem is entitled to absolute immunity against a collateral attack on her performance of the duties as a matter of law, and the trial court did not err in granting judgment accordingly.Gallagher 11/16/2017
State v. Bindus 105858 Postconviction relief, untimely, guilty plea, res judicata, subject matter jurisdiction. Defendant's motion to compel was actually a petition for postconviction relief, which was untimely filed. Defendant's guilty plea waived any deficiency in the indictment. Subject matter jurisdiction can be raised anytime; however, the defendant's challenge that he was charged by indictment instead of a complaint is procedural in nature, which is barred by res judicata.Keough 11/16/2017
Lemons v. State 104481R.C. 2743.48; wrongful imprisonment; actually innocent; "error in procedure" subsequent to sentencing and imprisonment. In this appeal, we find no merit to the state's argument that Lemons could not be a wrongfully imprisoned individual under R.C. 2743.48(A)(4) because his convictions were vacated and dismissed by the trial court rather than "on appeal." Because Lemons's convictions were vacated and dismissed by the trial court, Lemons meets the requirements of R.C. 2743.48(A)(4). We overrule Lemons's first assignment of error because we do not agree with Lemons that the trial court's judgment was against the manifest weight of the evidence. We agree with the trial court that Lemons did not prove by a preponderance of the evidence that he was actually innocent of murder and attempted murder under the second prong of R.C. 2743.48(A)(5). We sustain Lemons's second assignment of error because we agree with him that the trial court abused its discretion when it did not allow him to amend his complaint to reinstate his claim that he was a wrongfully imprisoned individual because he was released from prison due to a procedural error that occurred subsequent to his sentencing and imprisonment under the first prong of R.C. 2743.48(A)(5). Judgment reversed and remanded.Boyle 11/16/2017
State v. Lenard 104986App.R. 26(B), court costs, transcript, frivolous proposed assignment of error. The appellant has raised one proposed assignment of error in support of his App.R. 26(B) application for reopening, which is premised upon the allegation that the trial court did not impose court costs during the sentencing hearing. The appellant argues that he was prejudiced because the trial court imposed court costs in the sentencing journal entry, without addressing the issue of court costs during the sentencing hearing. The transcript of the sentencing hearing, however, demonstrates that the trial court did impose court costs during the sentencing hearing. The appellant has failed to demonstrate prejudicial error, because appellate counsel was not required to raise a frivolous proposed assignment of error on appeal.Gallagher 11/15/2017
State v. Makin 104010App.R. 26(B); ineffective assistance of appellate counsel; postrelease control; fabricated evidence. Appellant's application to reopen direct appeal fails on the merits because appellant failed to demonstrate a genuine issue that he was deprived effective assistance of appellate counsel. Trial court properly notified appellant that he was subject to a mandatory five-year period of postrelease control; trial court had no obligation to impose shorter terms for the remaining offenses. Record also did not support appellant's claim that the prosecutor "fabricated" evidence and therefore appellate counsel properly refrained from raising assignments of error related to this issue.Mays 11/13/2017