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Case CaptionCase No.Topics and IssuesAuthorCitation / CountyDecidedPostedWebCite
In re M Children C-180564CHILDREN – CUSTODY – RIGHT TO COUNSEL: In a permanent-custody case, where a guardian ad litem had been appointed for mother, and where mother had informed the magistrate that she had retained new counsel, the magistrate erred in finding that mother had waived her right to counsel without engaging in an inquiry to determine whether mother was in fact competent to do so and whether mother was knowingly, intelligently, and voluntarily waiving that right, either expressly or by inference.MyersHamilton 2/13/2019 2/13/2019 2019-Ohio-484
State v. Robinson C-170147CONSTITUTIONAL LAW/CRIMINAL – DUE PROCESS – MIRANDA – SELF-INCRIMINATION – COUNSEL – EXPERT WITNESS – EVIDENCE – ALLIED OFFENSES – R.C. 2941.25: Where the record demonstrates that the evidence against defendant was overwhelming, limited references to his post-Miranda silence did not violate defendant’s right to due process or his right to remain silent. [But see DISSENT: The state violated defendant’s right against self-incrimination when it used defendant’s silence as substantive evidence of his guilt, and the error was not harmless beyond a reasonable doubt, because the evidence of defendant’s guilt was not overwhelming.] Counsel was not ineffective for failing to file a motion to suppress evidence seized during a search of defendant’s girlfriend’s apartment where none of the evidence seized was consequential to the material issues at trial. Any prejudice defendant suffered due to the state’s failure to correct testimony from a forensic expert about gunshot stippling on the shooting victim, who may have been wearing a sweatshirt about which the expert was unaware and which would have affected the expert’s opinion, was cured when defense counsel addressed the issue with the witness during cross-examination. Because the murder of one victim and the felonious assault of another victim were the sole aggravating harms in the aggravated-burglary and aggravated-robbery counts related to each victim, the three offenses related to each victim were allied offenses of similar import. Aggravated-burglary counts that have as their aggravating factors the physical harm of different victims are not allied offenses of similar import, because the harms are separate and identifiable. An aggravated-burglary count predicated on defendant’s possession of a firearm is not an allied offense of similar import to an aggravated-burglary count relating to the same breaking and entering but aggravated by physical harm to a victim, because the harms are separate and identifiable.MockHamilton 2/8/2019 2/8/2019 2019-Ohio-387
W. & S. Life Ins. Co. v. Bank of New York Mellon C-170476CONTRACTS – POOLING SERVICES AGREEMENT – DUTIES OF TRUSTEE – DAMAGES – STANDING: Under New York law, where a pooling services agreement states that, prior to an event of default, the duties and obligations of the trustee shall be determined solely by the express provisions of the agreement, the trustee has no implied duties. Prior to an event of default, the trustee’s duties were limited to those specifically set out by the pooling services agreement and the trustee had no implied duty to supervise or enforce the duties of other parties to the agreement. General allegations of a breach of a representation or warranty are insufficient to provide notice to a trustee: a trustee only discovers the breach of a representation or warranty upon actual knowledge of a violation of a specific breach as to a specific loan. Sampling is an inappropriate way to establish breaches of representations and warranties, because breaches must be loan-specific and sampling does not show loans with material breaches. Where the pooling services agreement required notice to be provided to the master servicer to trigger an event of default, and no notice was provided, there was no event of default. Where the pooling services agreement required notice to the trustee for the trustee’s duties to be elevated to those of a prudent person under the circumstances, and no notice was given, the trustee’s duties were not elevated. Plaintiffs were not entitled to damages where no breach of contract was established. Under New York or Ohio law, once a holder of certificates transfers them, it loses standing to bring claims arising out of the certificates.ZayasHamilton 2/8/2019 2/8/2019 2019-Ohio-388
Cincinnati v. Bench Billboard Co. C-170668; C-170690RES JUDICATA – CLAIM PRECLUSION – CONSTITUTIONAL LAW/CIVIL – STANDING: Where the city sued defendant company, which provided advertising benches in the city’s rights-of-way, the trial court did not err in entering a judgment in favor of the city that ordered defendant to pay fines, penalties and costs for 55 violations of the city’s municipal code, upheld 75 additional violations, and denied defendant’s counterclaims, because all of defendant’s claims were adjudicated against it in a prior case between the parties or could have been raised in the prior case, and defendant’s asserted injury due to alleged violations of defendant’s constitutional rights could not be redressed because it had not otherwise complied with the requirements of the city’s municipal code.ZayasHamilton 2/6/2019 2/6/2019 2019-Ohio-362
Logossou v. Advancepierre Foods, Inc. C-170672CIV.R. 12(B)(6) – NEGLIGENCE – EMPLOYER INTENTIONAL TORT – R.C. 2745.01: Where plaintiff employee suffered a severe hand injury when a coworker activated a mixing machine, the trial court erred in dismissing under Civ.R. 12(B)(6) the employee’s negligent-inspection claim against two companies hired by the employer to inspect the machine and to ensure that it had the required guards where the employee alleged in his complaint that his employer had a duty to ensure the safety of the equipment at his workplace, the employer had contracted that duty away to the companies, and the companies had failed to exercise reasonable care in inspecting the machine. The trial court erred in dismissing under Civ.R. 12(B)(6) the employee’s R.C. 2745.01 intentional-tort claim against his employer, because the allegations that the employer had actual knowledge that barrier guards were required for the mixing machine, the employer had removed barrier guards from the mixing machine, and, despite the danger, had required the employee to operate the mixing machine without the guards, stated a claim for relief with sufficient particularity to satisfy the heightened pleading standard set forth in Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190, 532 N.E.2d 753 (1998), and its progeny.DetersHamilton 2/6/2019 2/6/2019 2019-Ohio-363
Cincinnati v. Metro. Design C170708INSURANCE – ATTORNEY FEES: Because the duty to defend is significantly broader than the duty to indemnify, the trial court did not err when it determined that third-party defendant insurance company had a duty to defend its insured against a public-nuisance lawsuit, which alleged property damage as a result of the insured’s negligence and sought an injunction ordering the insured to immediately restore the damaged property: although the complaint did not specifically request compensatory damages, it was still a “suit for damages” under the insurance policy where, due to the nature of the damages and the immediate need for repair, the complaint demanded that the insured expend money to immediately restore the damaged property. Attorney fees are recoverable where an insurance company wrongfully refuses to defend an action; however, the trial court erred by awarding attorney fees for the insured’s consultation with a criminal defense firm where the insurance policy specifically excluded coverage for damages caused by an insured’s criminal acts. The trial court did not err in declaring that an exclusion contained in the commercial general-liability insurance policy, which excluded coverage for property damage to a part of any property that must be repaired because the insured’s work was incorrectly performed on it, did not apply to preclude coverage where the insured was not seeking coverage for property damage to property that was a part of the insured’s contracted work, but instead was seeking coverage for damage done to property belonging to third parties.MockHamilton 2/6/2019 2/6/2019 2019-Ohio-364
State v. Hill C-180114NEW TRIAL–APPELLATE REVIEW/CRIMINAL: The common pleas court abused its discretion in overruling without an evidentiary hearing that part of defendant’s Crim.R. 33(A)(2) and (A)(6) motion seeking a new trial on Brady and actual-innocence grounds, but not the part of the motion seeking a new trial on ineffective-counsel grounds: Crim.R. 33 contemplates a hearing, the nature of which is discretionary with the court; the court could not, consistent with Calhoun, have decided the actual-innocence claim in a “paper hearing”; and the new-trial motion, on its face, demonstrated substantive grounds for relief on the Brady and actual-innocence claims, but not on the ineffective-counsel claim. In the appeal from the common pleas court’s judgment overruling on the merits defendant’s Crim.R. 33(A)(2) and (A)(6) motion for a new trial, App.R. 3(C) precluded the state from arguing in defense of that judgment that the grounds for relief presented in the motion were time-barred under Crim.R. 33(B), because the common pleas court had granted defendant’s Crim.R. 33(B) motion for leave to file the new-trial motion, and the state did not, as App.R. 3(C)(1) required, file a cross-appeal.DetersHamilton 2/6/2019 2/6/2019 2019-Ohio-365
In re J.L. C-180453; C-180454ADOPTION: In resolving stepfather’s petition to adopt children without the consent of their natural father, the probate court properly weighed father’s minimal efforts to reestablish contact with his children as well as mother’s limited actions to interfere or discourage that contact; therefore, the probate court did not lose its way in making the determination that father’s failure to contact the children, over the course of the whole statutory look-back period, was not excused by justifiable cause.CunninghamHamilton 2/6/2019 2/6/2019 2019-Ohio-366
State v. Johnson C-170612APPELLATE REVIEW/CRIMINAL: Appellate review is strictly limited to the record on appeal which consists of three categories of documents identified in App.R. 9: the original papers and exhibits thereto filed in the trial court; the transcript of proceedings, if any, including exhibits; and a certified copy of the docket and journal entries prepared by the clerk of the trial court. The appellant bears the burden of identifying in the record the error on which an assignment of error is based; when an appellant relies upon facts shown in a transcript of proceedings, that duty includes the obligation to order a transcript of any proceedings he considers necessary for inclusion in the record, and to ensure that the transcript of the proceedings is filed with the clerk of the trial court under App.R. 10(A). When an appellant has failed in his duty to ensure that the record on appeal includes the items necessary to the resolution of the assigned errors, the reviewing court presumes the regularity of the lower court’s proceedings. A reviewing court cannot rely on matters raised in briefs, or attached thereto, but not supported in the record, to resolve assignments of error. When the record on appeal is silent as to what transpired in the juvenile court and does not reflect any claimed defect in the adult court’s subject-matter jurisdiction, a reviewing court cannot sustain the appellant’s assignments of error challenging that jurisdiction. When an appellant has failed to ensure that the record on appeal contains transcripts of the evidentiary hearings before the juvenile court, or the juvenile court’s rulings on those evidentiary matters, including whether there was probable cause to believe that the appellant had used a firearm to commit aggravated robbery, whether other offenses at issue arose from a common nucleus of operative facts with the firearm offense, whether the appellant was amenable to rehabilitation as a juvenile, and the juvenile court’s entries actually transferring jurisdiction to the trial court and characterizing whether those transfers were mandatory or discretionary, a reviewing court cannot reach assignments of error alleging that the trial court improperly exercised jurisdiction over the appellant.CunninghamHamilton 1/30/2019 1/30/2019 2019-Ohio-287
In re D.J. C-170615, 616CHILDREN – APPELLATE REVIEW – BINDOVER – JURISDICTION: Appellate review is strictly limited to the record on appeal which consists of three categories of documents identified in App.R. 9: the original papers and exhibits thereto filed in the trial court; the transcript of proceedings, if any, including exhibits; and a certified copy of the docket and journal entries prepared by the clerk of the trial court. When an appellant has failed in his duty to ensure that the record on appeal includes the items necessary to the resolution of the assigned errors, the reviewing court presumes the regularity of the lower court’s proceedings. The juvenile court’s entry of dismissal for want of prosecution was not a determination that the juvenile was delinquent, left the parties as if the action had never been commenced, and did not affect the juvenile’s substantial rights; thus the juvenile court’s entry, entered in a special proceeding, was not a final order under R.C. 2505.02(B)(2). Ordinarily, R.C. 2152.12(B) permits a juvenile court to order the transfer of a discretionary-transfer delinquency case only if the court has found at a hearing, inter alia, that the child was not amenable to care or rehabilitation within the juvenile system and should be subject to adult sanctions to ensure the safety of the community; but a juvenile court may transfer jurisdiction of a discretionary-transfer delinquency case without an amenability hearing as long as it has found probable cause to believe that the juvenile also committed a mandatory-transfer offense and that both the mandatory-transfer offense and the additional discretionary charges arose from a common nucleus of operative facts. Where there is no evidence of record that a discretionary-transfer delinquency case and a mandatory-transfer delinquency case, which included acts committed by the same juvenile, arose from a common nucleus of operative facts, the juvenile court is not relieved of the requirement under R.C. 2152.12(B) to conduct further hearings or to make findings with respect to the juvenile’s eligibility to be tried as a juvenile. When a juvenile court’s entry improperly transfers jurisdiction to an adult court that then exercises that flawed jurisdiction, including a remand to the juvenile court under the reverse-bindover scheme, every subsequent entry of record is a legal nullity. An appeal is commenced only by the timely filing of a notice of appeal; the failure to file a notice of appeal deprives an appellate court of jurisdiction to review the lower court’s actions. Absent a proper bindover procedure, the juvenile court has the exclusive subject-matter jurisdiction over any case concerning a child who is alleged to be a delinquent, and thus a judgment imposed by a court that lacks subject-matter jurisdiction is void.CunninghamHamilton 1/30/2019 1/30/2019 2019-Ohio-288
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