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Case CaptionCase No.Topics and IssuesAuthorCitation / CountyDecidedPostedWebCite
Watts v. Fledderman C-170255CONTRACTS – REAL PROPERTY/LANDLORD AND TENANT – CIV.R. 6(B) – PROCEDURE/RULES: The trial court did not abuse its discretion under Civ.R. 52 by asking the prevailing party to submit proposed findings of fact and conclusions of law and by then adopting the prevailing party’s proposed findings of fact and conclusions of law when they accurately reflected the record and the law. In a declaratory-judgment action concerning the escrowed proceeds from the sale of real property, the trial court did not err in awarding the proceeds to the titled owner of the property and dismissing a counterclaim brought by the deceased tenant’s sister contending that the deceased tenant was the equitable owner of the property pursuant to an oral land contract where the deceased tenant had entered into a commercial lease agreement with the owners; the clear and unambiguous language of the lease gave the deceased tenant the right-of-first-refusal to purchase the property for $40,000; and the deceased tenant had not exercised the right of first refusal during his lifetime, but had acted consistently with his obligations as a commercial tenant of the property. The trial court properly dismissed with prejudice a counterclaim for a breach of a claimed residential lease agreement and for reimbursement of monies paid by the decedent during the tenancy in violation of Ohio’s Landlord-Tenant Act where the clear and unambiguous language of the lease agreement showed that the agreement was a commercial lease, which was not subject to the provisions of the Landlord Tenant Act. The trial court did not abuse its discretion under Civ.R. 6(B) in denying a motion for a default judgment on counterclaims for a declaratory judgment and a breach of a claimed residential lease agreement, or in granting the titled property owner’s motion for leave to file an answer out of time, where the counterclaims demanded the opposite declaratory relief that the titled property owner sought in her declaratory-judgment claim and where the titled property owner had not flagrantly disregarded the civil rules, but had moved to answer within nine days of being served with the motion for a default judgment.DetersHamilton 7/13/2018 7/13/2018 2018-Ohio-2732
Williams v. Sharon Woods Collision Center, Inc. C-170511CONSUMER SALES PRACTICES ACT – DAMAGES – ATTORNEY FEES – PROCEDURE/RULES – NEW TRIAL : In a case brought by an automobile owner against an automobile repair shop for violations of the Consumer Sales Practices Act, the trial court did not err in allowing plaintiff to present evidence as to diminution in value of the automobile or in permitting the jury to consider that issue where plaintiff presented expert testimony showing the value of the car after an accident but before the alleged shoddy repairs by defendant repair shop, and testimony regarding the car’s value after the shoddy repairs; therefore, there was evidence showing the diminished value of the car after the repairs, and the evidence was legally sufficient to proceed to a jury. The trial court did not abuse its discretion in awarding plaintiff attorney fees where the court found that the claims in the case stemmed from a common core of facts and legal theories and could not be separated, the court conducted a thorough analysis of the reasonableness of the fees, and the amount of the fees was not so high or so low as to shock the conscience. The trial court did not abuse its discretion in denying defendant repair shop’s motion for a new trial based on the misconduct of plaintiff automobile owner, because the record did not show that plaintiff had committed any misconduct by selling the car after the trial where defendant had had the opportunity to present evidence regarding the car's value after the repairs, and where the amount a third-party received for the car in a sale after-the-fact was irrelevant. The trial court did not abuse its discretion in denying defendant’s motion for a new trial on the basis of newly discovered evidence, because matters occurring after trial cannot be newly discovered evidence that would justify the granting of a new trial. The trial court did not err in denying defendant’s motion for a new trial on the basis of an error of law at trial, because no error of law occurred at trial, and events that occurred after trial did not change the fact that no error had occurred. The trial court did not err in failing to hold a hearing on defendant’s motion for a new trial or in failing to refer it to the visiting judge who had presided over the trial, because Civ.R. 59 does not require a hearing except when the court grants a new trial of its own initiative, and nothing in the record indicated that the assigned trial judge did not give full and fair consideration to the issues raised in the motion.MockHamilton 7/13/2018 7/13/2018 2018-Ohio-2733
State v. Buttery C-170141CRIMINAL MISCELLANEOUS – JURISDICTION – SENTENCING – COMMUNITY-CONTROL VIOLATION: A trial court has jurisdiction to sentence a defendant for a community-control violation during the pendency of the defendant’s appeal from the underlying judgment of conviction.DetersHamilton 7/6/2018 7/6/2018 2018-Ohio-2651
State v. Evans C-170034AGGRAVATED BURGLARY – EVIDENCE – OTHER ACTS – OPINION TESTIMONY – PROSECUTOR — CONSTITUTIONAL LAW/CRIMINAL – FIFTH AMENDMENT – HARMLESS ERROR – PLAIN ERROR – COUNSEL — WITNESSES: In a prosecution for aggravated burglary and felonious assault, the trial court did not err in admitting the victim’s testimony regarding defendant’s prior instances of physical violence against the victim where the testimony was relevant to prove defendant’s motive and intent, and therefore, did not violate the general prohibition against “other acts” evidence in Evid.R. 404(B). The trial court erred in admitting at trial evidence of defendant’s prior misdemeanor-assault conviction in violation of Evid.R. 609 and 404(B), but the error did not rise to the level of plain error where defendant was tried before the court and the erroneous admission of his prior misdemeanor-assault conviction did not affect the outcome of the trial. The trial court did not err in admitting, pursuant to Evid.R. 701, the opinion testimony of a responding police officer and the victim’s supervisor that scratches on the victim’s face were “fresh” injuries where their testimony was based on their personal observation of the victim and their common understanding of scratches and cuts. The defendant was not denied a fair trial due to prosecutorial misconduct where the victim’s testimony regarding prior instances of physical harm was properly admissible under Evid.R. 404(B). The assistant prosecuting attorney’s erroneous impeachment of the defendant with a prior misdemeanor assault conviction did not deny him a fair trial. In a bench trial for aggravated burglary and felonious assault, any alleged error by the trial court in compelling defendant to testify in violation of his Fifth Amendment privilege against self-incrimination was harmless under the three-part test articulated in State v. Harris, 142 Ohio St.3d 211, 2015-Ohio-166, 28 N.E.3d 1256, because the admission of defendant’s testimony had no effect on the trial court’s verdict. The actions and omissions by defense counsel alleged to constitute ineffective assistance of trial counsel did not provide a basis for overturning the defendant’s aggravated-burglary conviction where counsel’s questioning of the victim as to prior instances of physical harm could be construed as legitimate trial strategy; counsel’s failure to object to other-acts testimony and testimony from the victim’s supervisor and the responding police officer about the age of the victim’s facial injuries was properly admitted; and counsel’s failure to object to the prosecutor’s erroneous impeachment of defendant with a prior misdemeanor-assault conviction and to the trial court’s alleged compelling of defendant to testify in violation of the Fifth Amendment were not outcome determinative. Defendant’s conviction for aggravated burglary was supported by sufficient evidence and was not contrary to the manifest weight of the evidence where the victim testified that defendant had kicked in the sidelight to the front door of her workplace, entered, and punched her in the face multiple times; the victim’s supervisor and the responding police officer testified that the victim had sustained facial injuries, including fresh scratches to her face; the victim’s medical records showed that she had been treated for a nasal fracture; and the state introduced the victim’s 911 calls, as well as the jail-house phone calls between defendant and his ex-girlfriend, in which defendant had admitted hitting the victim and knocking her to the ground, and the trial court chose to accord more weight to testimony of the state’s witnesses and a 911 recording than the testimony of defendant and his witness that defendant had kicked in the door to the victim’s workplace, but he had not gone inside or punched the victim.DetersHamilton 6/29/2018 6/29/2018 2018-Ohio-2534
Beattie v. McCoy C-170197, C-170211INSURANCE – CONTRACTS – EVIDENCE – PROCEDURE/RULES – EXPERT: Under Civ.R. 56(E), an affidavit must be made on personal knowledge, must “set forth such facts as would be admissible in evidence,” and must “show affirmatively that the affiant is competent to testify to the matters stated in the affidavit”; thus a party offering a witness as an expert has the burden of establishing that the witness is qualified to competently give such testimony in compliance with Evid.R. 702, 703, and 705. In order to comply with Civ.R. 56(E) and Evid.R. 702 and 705, an expert affidavit must set forth the expert’s credentials, and the facts supporting the expert’s opinion which would be admissible into evidence; an expert’s affidavit may not set forth conclusory statements without sufficient supporting facts. Evid.R. 702(B) requires an expert to testify within the area of his or her expertise, and when a psychologist’s affidavit fails to disclose any specialized knowledge, skill, training, or treating experience regarding transference phenomenon or patients that suffer from it, and fails to disclose whether the psychologist had any experience with regard to what training physicians receive in the diagnosis and treatment of psychological conditions in general, or specifically of transference phenomenon, that witness is not qualified to opine that any physician should have known about transference as part of their training and education. Under the natural and commonly accepted meaning of terms in a professional-liability insurance policy issued to a physician, the insured does not provide a “professional service” by engaging in sexual conduct with a patient. Under a professional-liability insurance policy, which provides that the insurer will pay claims that its physician “insured becomes legally obligated to pay because of professional services * * * which should have been provided,” the insurer is not obligated to pay when the insured has engaged in only a limited therapeutic relationship with a patient with whom he conducts a sexual affair; factors indicating that a physician has only a limited therapeutic relationship with a patient include when the physician has referred the patient to a clinical psychologist for treatment of reported worsening depression and anxiety and has not engaged in an intimate psychological therapy relationship.CunninghamHamilton 6/29/2018 6/29/2018 2018-Ohio-2535
Danopulos v. American Trading II, L.L.C. C-170461CONVERSION - PAWNBROKER: The trial court erred by entering judgment for defendant pawnbroker on plantiff’s claim of conversion where the undisputed evidence at trial demonstrated that the pawnbroker had intentionally disassembled and sold plantiff’s stolen property without her permission.CunninghamHamilton 6/29/2018 6/29/2018 2018-Ohio-2536
Etheridge v. Etheridge C-170629DIVORCE – PROCEDURE/RULES: The trial court did not err in granting the parties a divorce based on wife’s amended counterclaim that the parties had lived separate and apart for one year without cohabitation; neither wife’s amended counterclaim nor the trial court’s entry had to echo the exact language of R.C. 3501.05(J). Civ.R. 15(C) did not require that the factual allegations in wife’s amended counterclaim relate back to the date of the filing of her original counterclaim.MillerHamilton 6/29/2018 6/29/2018 2018-Ohio-2537
State v. Smith C-170028CONSTITUTIONAL LAW/CRIMINAL – EVIDENCE – SELF-DEFENSE – SENTENCING – WITNESSES: The trial court did not err under R.C. 2941.25, Ohio’s multiple-count statute, in imposing separate and consecutive sentences for the offenses of murder and having a weapon while under a disability where the offenses were committed separately and with a separate animus. The trial court did not err when it refused to suppress statements made by defendant during a police interview, and recorded electronically in their entirety, where the 27-year-old defendant had executed a written Miranda rights waiver form, willingly answered police questions, did not exhibit any behavior that would have indicated that he was under the influence of pain medications, had extensive experience with the criminal justice system, and there was little evidence of police coercion or overreaching; and where nothing in the recorded interview refuted the presumption, under R.C. 2933.81(B), that defendant had knowingly and voluntarily made statements to the police. The trial court did not abuse its discretion by allowing the state to impeach its own witness with her prior inconsistent statements made to police investigators where the state made a showing of surprise or affirmative damage as the witness’s denials of her prior statements were hardly neutral answers such as “I don’t remember,” and where the witness had affirmatively challenged the veracity of the assistant prosecuting attorney’s claims that the witness had made the prior statements and had challenged the state to produce the recordings of the police interview. Self-defense is an affirmative defense that legally excuses admitted criminal conduct where defendant establishes by a preponderance of the evidence (1) that he was not at fault in creating the violent situation, (2) that he had a bona fide belief that he was in danger of imminent death or great bodily harm and that the only means of escape was by use of force, and (3) that he did not violate any duty to retreat or avoid the danger; these elements of self-defense are cumulative, and if defendant fails to prove any one of these elements by a preponderance of the evidence he has failed to demonstrate that he acted in self-defense. We cannot say that the jury, sitting as the trier of fact, lost its way in rejecting defendant’s defense of self-defense where there was no evidence establishing that he was not at fault in creating the violent situation when defendant had brought a handgun with him to an apartment, brandished the gun and readied it for action by cocking the hammer, and remained in the apartment even though one of his victims had confronted him and ordered him to leave, where record also contains no evidence establishing that defendant was in danger of imminent death or great bodily harm when he was substantially younger than his victims and employed brutal measures in response to the victims’ alleged attack, and where no evidence established that defendant had not violated any duty to retreat or avoid the danger when, from the forensic physical evidence, it was clear that defendant had reasonable means to retreat and could have ended the altercation or fled at almost any point. Where the trial court failed to include its consecutive-sentencing findings in its sentencing entry as required by the Ohio Supreme Court’s decision in State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, the trial court’s failure does not render the sentence contrary to law; instead, this clerical mistake may be corrected by the court through a nunc pro tunc entry to reflect what actually occurred in open court.CunninghamHamilton 6/27/2018 6/28/2018 2018-Ohio-2504
Lohmann v. Cincinnati C-170242CIVIL SERVICE – PROCEDURE/RULES: In an appeal from a decision of the civil service commission pursuant to R.C. 2506.04, the trial court properly denied the employees’ request to supplement the administrative record by taking judicial notice of public records, because R.C. 2506.03 permits the introduction of additional evidence only under the statutory criteria. The trial court did not abuse its discretion by declining to strike, pursuant to Loc.R. 14(B) of the Hamilton County Court of Common Pleas, the city’s memorandum opposing the employees’ motion to supplement the administrative record as untimely where the employees could not demonstrate prejudice. The trial court’s judgment, which affirmed the decision of the civil service commission that denied three civil service employees the ability to sit for a promotional examination on the basis that their applications were incomplete because they did not resubmit their educational transcripts, was not supported by a preponderance of the evidence as a matter of law where the administrative record reflected that all three employees’ applications had initially been accepted for an examination that had been postponed, there was no evidence that the applications for the postponed examination were deficient, and email correspondence from the city had informed them there was nothing more for them to do.DetersHamilton 6/27/2018 6/28/2018 2018-Ohio-2505
State ex rel. Community Press v. Blue Ash C-170281PUBLIC RECORDS: Documents requested by relator media outlet, which related to a professional development program for respondent city’s management employees, were not subject to a public records request, because those documents were not “records” as that term is defined in R.C. 149.011(G). Emails transmitting documents relating to a professional development program for the city’s management employees were not public records; therefore, the media outlet requesting those emails could not be aggrieved by the city’s failure to maintain them. Where the media outlet was not entitled to documents relating to a professional development program for the city’s management employees, the trial court’s decision not to award attorney fees for the media outlet’s litigation relating to those documents was not erroneous.MockHamilton 6/27/2018 6/28/2018 2018-Ohio-2506
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