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Case CaptionCase No.Topics and IssuesAuthorCitation / CountyDecidedPostedWebCite
Vaughn v. Firehouse Grill, L.L.C. C-160502NEGLIGENCE/SLIP/FALL: Summary judgment was properly granted in favor of defendant restaurant owner on plaintiff customer's negligence claim stemming from her trip and fall down a handicap ramp outside the restaurant where the restaurant owner presented uncontroverted evidence that the ramp and its paint scheme was open and obvious: the customer had testified that she knew where the ramp was, having navigated it successfully three times prior to her fall, she had an unobstructed view of the ramp at the time of her fall, and no attendant circumstances distracted her from seeing where she was going, and the customer's deposition testimony that she was unable to see the change in elevation between the ramp and the parking lot, when coupled with the deposition testimony from defendants-appellees' representatives, the photographs of the ramp, and the evidence of code violations given by an architect, was insufficient to create a genuine issue of material fact as to the latent nature of the paint scheme of the ramp. [But see DISSENT: The trial court erred in granting summary judgment in favor of the restaurant owner, because the evidence, including photographs, viewed in the light most favorable to the plaintiff customer, did not conclusively establish that the ramp's condition was open and obvious where plaintiff testified that the paint scheme made the ramp seem wider than it was and that the ramp was not a typically rectangular handicap ramp, and the restaurant owner testified that he could not accurately identify the ramp's shape even after viewing photographs of it.] Summary judgment was properly granted to defendant independent contractor on the plaintiff restaurant customer's claim that it had negligently painted a handicap ramp where the independent contractor had presented uncontroverted evidence that it had contracted with the restaurant owner to restripe the parking lot, which included repainting the handicap ramp just as it had been painted previously; it had subcontracted the painting of the ramp to a third party; it had not directed the means or manner of that third-party's work; and therefore, it owed no duty to the customer.CunninghamHamilton 7/26/2017 7/26/2017 2017-Ohio-6967
Drake Townhomes, L.L.C. v. Woodberry C-160632LANDLORD-TENANT: The plaintiff landlord's notice of a change in the terms of a month-to-month tenancy-an increase in rent-was not a 30-day notice of termination or nonrenewal of the lease, as contemplated by R.C. 5321.17(B) of Ohio's Landlord-Tenant Act. The defendant tenant's nonpayment of rent did not obviate her duty to provide 30-days' notice to end the month-to-month tenancy, even though R.C. 5321.17(D) would allow the landlord to proceed with an eviction without providing the statutorily required 30-day notice of termination when the tenant had breached a condition of the lease by the nonpayment of rent. Late-fee provisions in leases allowing stipulated damages are not per se unenforceable penalties, but are subject to review under the test for valid liquidated-damages clauses set forth in Sampson Sales, Inc. v. Honeywell, Inc., 12 Ohio St.3d 27, 465 N.E.2d 392 (1984). It would be unconscionable, as contemplated by R.C. 5321.14(A), to enforce a late-fee provision for the month after the tenant had vacated the property where the landlord had indicated it would not accept rents, the tenant moved out on the agreed-upon date based on her belief that she would not owe additional rent or late fees, the landlord occupied the property for part of the month, and the landlord did not incur the utility fees for the month that were charged as rent.CunninghamHamilton 7/26/2017 7/26/2017 2017-Ohio-6968
Siegel v. Ringer C-160659STATUTE OF LIMITATIONS - COGNIZABLE EVENT - MEDICAL MALPRACTICE - WRONGFUL DEATH - COLLATERAL ESTOPPEL: The trial court did not err in granting summary judgment in favor of the defendants on plaintiffs' medical-malpractice claims and wrongful-death claim where the plaintiffs filed their lawsuit more than one year after they had notice of their daughter's complications and death and more than two years after her death. The plaintiffs were collaterally estopped from relitigating whether the defendant doctor had committed fraud and spoliation where the plaintiffs had a full and fair opportunity to litigate the issue in the Court of Claims and the Tenth District Court of Appeals, both courts had rejected the claims, and the Ohio Supreme Court had declined jurisdiction.ZayasHamilton 7/26/2017 7/26/2017 2017-Ohio-6969
State v. Pippin C-160380, C-160381RAPE - PANDERING - CONSTITUTIONAL LAW/CRIMINAL - SEARCH AND SEIZURE - WARRANT - SENTENCING - R.C. 2941.25 - SEX OFFENSES: A criminal defendant cannot challenge for the first time on appeal the seizure of his cell phone during the execution of a search warrant where, in seeking to suppress the evidence against him in the trial court, he challenged the constitutionality of the search of phone's contents, but not the seizure of the phone itself. In a prosecution for rape and pandering of sexually-oriented matter involving a minor, the trial court properly denied defendant's motion to suppress the videos found on his cell phone during an unlawful search conducted pursuant to an unsigned warrant, because the state proved by a reasonable probability that the videos were discovered pursuant to a lawful warrant that the officers secured soon after the initial search, and the second warrant was supported by the same facts used to establish probable cause in the initial warrant. A search warrant that specifically identified the cell phone to be searched and limited the scope of the search to evidence relating to rape and burglary crimes was neither overbroad nor insufficiently particular for purposes of the Fourth Amendment. The trial court properly declined to conduct an evidentiary hearing on defendant's challenge to the veracity of statements in an affidavit supporting a search warrant where, after setting aside the allegedly false material in the affidavit, the remainder of the affidavit sufficiently supported a finding of probable cause. Rape offenses involving the same type of sexual conduct committed within a short time were not allied offenses of similar import where the acts were separated by significant intervening acts: defendant committed rape by fellatio on the apparently semi-conscious victim, followed by a withdrawal from the victim's mouth, the victim's apparent loss of consciousness, and then the defendant's forceful penetration of the unconscious victim's mouth, which constituted a second rape by fellatio. Multiple convictions for pandering of sexually-oriented matter involving a minor were allowed for each individual video file on defendant's cell phone because a separate animus existed every time a separate image or file was created and saved.DetersHamilton 7/26/2017 7/26/2017 2017-Ohio-6970
State v. Bumu C-160492APPELLATE REVIEW/CRIMINAL: The common pleas court did not abuse its discretion in overruling defendant's R.C. 2943.031(D) motion to withdraw his guilty plea to drug possession on the ground that the trial court had not substantially complied with R.C. 2943.031(A) in advising him of the immigration consequences of his conviction: defendant bore the burden of proving that, under the totality of the circumstances surrounding the entry and acceptance of his plea, he had not subjectively understood his conviction's immigration consequences and that he would not have pled if he had; the common pleas court determined that defendant had failed to sustain that burden; and that determination, in the absence from the record on appeal of a plea-hearing transcript conforming to the requirements of App.R. 9(B), cannot be said to have been arbitrary, unconscionable, or the product of an unsound reasoning process. [But see DISSENT: Bumu complied with App.R. 9(B) and 10(A); therefore this case should be decided on the merits: the record shows that the plea-hearing transcript was made a part of the record in the trial court and in the appellate court under App.R. 10(A); Bumu requested that a complete transcript of the proceedings be filed; the clerk of the trial court did not transmit a bound copy of the plea-hearing transcript, as requested by Bumu; and Bumu made reasonable arrangements for the transcription of the plea hearing; therefore, the omission should be corrected and a supplemental record filed and transmitted as authorized by App.R. 9(E).]MillerHamilton 7/21/2017 7/21/2017 2017-Ohio-6901
Hayes v. Carrigan C-160554, C-160630, C-160641EVIDENCE/WITNESS/TRIAL - TRESPASS: The trial court erred in finding in favor of two neighboring landowners on their respective trespass claims: the plaintiff did not offer any evidence of substantial, noneconomic loss resulting from the defendant's alleged conduct of indirectly trespassing onto the plaintiff's property by way of spraying weed killer, which damaged the plaintiff's bamboo; and the defendant presented insufficient evidence that the plaintiff had acted intentionally with regard to planting bamboo on the property line, which had then spread onto the defendant's property.DetersHamilton 7/19/2017 7/19/2017 2017-Ohio-5867
State v. Stephens C-160653, C-160654DANGEROUS DOGS - SENTENCING: The trial court erred in designating defendant's two dogs as dangerous dogs under R.C. 955.222 as part of defendant's sentences for failing to register the dogs: assuming that the trial court was entitled to enforce R.C. 955.222, the court failed to follow R.C. 955.222's procedure in designating the dogs dangerous and failed to give the defendant notice that he could challenge the designations at a hearing.DetersHamilton 7/19/2017 7/19/2017 2017-Ohio-5868
In re A.T. C-160597 C-160598, C-160599APPELLATE REVIEW - JURISDICTION - FINAL ORDER - JUV.R. 40: Juv.R. 40 contains language identical to Civ.R. 53, and therefore, the requirements outlined in Alexander v. LJF Mgt., Inc., 1st Dist. Hamilton No. C-090091, 2010-Ohio-2763,  12, are applicable to juvenile court entries regarding magistrate's decisions: the entries are not final until the juvenile court reviews the magistrate's decision and (1) rules on any objections, (2) adopts, modifies or rejects the decision, and (3) enters a judgment that determines all the claims for relief in the action or determines that there is no just reason for delay. The juvenile court's entries adopting the magistrate's decisions were not final, appealable orders pursuant to Juv.R. 40(D)(4)(e), which provides that a court that adopts, rejects, or modifies a magistrate's decision shall also enter a judgment: the entries reviewed the magistrate's decisions, ruled on the objections and adopted the magistrate's decisions, but they did not enter judgments, and therefore, they are not final appealable orders and the appeals from the entries must be dismissed for lack of jurisdiction.ZayasHamilton 7/14/2017 7/14/2017 2017-Ohio-5821
State v. Pierce C-160699SPEEDY TRIAL: The trial court erred in overruling the defendant's motion to dismiss his indictment on constitutional speedy-trial grounds under the four-factor analysis set forth in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), because all four factors weighed in favor of the defendant: first, the 13½-month delay between the defendant's indictment and arrest is presumptively prejudicial; second, the state failed to offer any evidence to explain the delay, and the state bears the burden to explain the reason for the delay under the second Barker factor; third, the defendant timely asserted his speedy-trial right by filing a motion to dismiss the indictment five days after the return of the warrant; fourth, the defendant did not have to show actual prejudice as a result of the state's delay, because prejudice was presumed under the first Barker factor, and the state offered no evidence to rebut this presumption of prejudice.DetersHamilton 7/12/2017 7/12/2017 2017-Ohio-5791
In re D.B. C-170102; C-170115; C-170151CHILDREN - CUSTODY - EVIDENCE - CONSTITUTIONAL LAW - DUE PROCESS: The trial court did not err in adopting the magistrate's decision granting permanent custody of the children to the Hamilton County Department of Job and Family Services where the decision was supported by sufficient evidence and was not against the manifest weight of the evidence. Mother's due-process rights were not violated where she did not have the opportunity to cross-examine the magistrate presiding over the custody trial, because the comment made by the magistrate concerning the credibility of a witness did not constitute testimony and there was no jury that could have been prejudicially influenced by it.MillerHamilton 7/12/2017 7/12/2017 2017-Ohio-5792