Court of Appeals of Ohio Diane V. Grendell Judge Timothy P. Cannon Presiding/Administrative Judge Eleventh Appellate District 111 High Street, N.E., Warren, Ohio 44481 Telephone: (330) 675-2650 Facsimile: (330) 675-2655 Ashtabula Geauga Lake Portage Trumbull Colleen Mary O’Toole Judge Cynthia Westcott Rice Judge Thomas R. Wright Judge Shibani Sheth-Massacci Court Administrator/Magistrate/ Administrative Counsel December 22, 2014 RELEASE ASHTABULA 2014-A-0020 STATE OF OHIO, Plaintiff-Appellee v. CHRISTOPHER M. MEYERS, Defendant-Appellant. Judgment affirmed. See Opinion and Judgment Entry. [CANNON] (RICE) (WRIGHT) CRIMINAL LAW - ineffective assistance of counsel; strategy and trial tactics; lesser included offense; disorderly conduct; assault. 2014-A-0022 REBECCA RISLEY POOLE, Plaintiff-Appellant v. JEFFORY WAYNE POOLE, Defendant-Appellee. Judgment reversed and remanded. See Opinion and Judgment Entry. [O’TOOLE] (RICE) (WRIGHT) DOMESTIC RELATIONS - GENERAL - changing child's surname; abuse of discretion standard; domestic relations court; jurisdiction; "during the marriage"; R.C. 3705.09(F)(1). 2014-A-0024 NATIONSTAR MORTGAGE, LLC, Plaintiff-Appellee v. LOUIS F. GRUND, JR., et al., Defendant-Appellant. Judgment affirmed. See Opinion and Judgment Entry. [RICE] (CANNON) (WRIGHT) REAL PROPERTY - foreclosure of mortgage; assignment of mortgage results in transfer of note; under R.C. 1303.22(B), such transfer of note vests in transferee the right to enforce it and transferee thus has standing; one may be entitled to enforce note without being owner of note; R.C. 1303.31(B); assignment of mortgage before filing of complaint is sufficient to transfer both mortgage and note and to confer standing; where assignee of mortgage assigns mortgage and note to third party while foreclosure action is pending, that third party becomes real party in interest; mortgagor lacks standing to challenge validity of mortgage assignment. (December 22, 2014 Cont’d) GEAUGA 2013-G-3159 Page ~ 2 ~ CHARDON LOCAL SCHOOL DISTRICT BOARD OF EDUCATION, Appellee v. MICHAEL KELLER, ADMINISTRATOR OF THE ESTATE OF PERRY T. YOWELL, DECEASED, Appellant. Judgment affirmed. O’TOOLE, J., dissents with a Dissenting Opinion. See Opinion and Judgment Entry. [CANNON] (WRIGHT) (O’TOOLE) ADMINISTRATIVE APPEAL - unemployment compensation review commission; R.C. 4141.282; just cause determination; unlawful, unreasonable or against the manifest weight of the evidence; unemployment compensation benefits: unreasonable disregard for his employer’s best interest. 2014-G-3235. KIM M. BLOCK, Plaintiff-Appellee v. GREG BATTAGLIA, DefendantAppellant. Appeal dismissed. See Memorandum Opinion and Judgment Entry. [GRENDELL] (RICE) (WRIGHT) APPELLATE REVIEW - App.R. 4(A); thirty-day rule; untimely appeal. LAKE 2013-L-129 STATE OF OHIO, Plaintiff-Appellee v. CHARLES DRISCOL, Defendant-Appellant. Judgment affirmed. See Opinion and Judgment Entry. [O’TOOLE] (RICE) (WRIGHT) CRIMINAL LAW - trafficking in heroin; possession of heroin; tampering with evidence; possessing criminal tools; Crim.R. 29; sufficiency. INEFFECTIVE ASSISTANCE OF COUNSEL. 2014-L-015 CHARLENE L. CAMPBELL, Plaintiff-Appellee v. TIMOTHY SEAN CAMPBELL, Defendant-Appellant. Judgment affirmed in part and modified in part. See Opinion and Judgment Entry. [O’TOOLE] (RICE) (WRIGHT) DOMESTIC RELATIONS - PROPERTY - R.C. 3105.171(A)(6)(a)(vi); personal injury awards are separate property; separate property which is commingled with marital property retains its identity if it is traceable; receipt of personal injury proceeds in a single check may make the separate property untraceable; valuation of property in a divorce is a question of fact; a joint venture is a matter of contract express or implied and does not require a written instrument. 2014-L-034 & DAVID N. PATTERSON, Plaintiff-Appellee v. WILLIAM GODALE, 2014-L-042 Defendant-Appellant. Judgment affirmed. See Opinion and Judgment Entry. [O’TOOLE] (CANNON) (GRENDELL) CIVIL - manifest weight of the evidence; quantum meruit; a judgment which is not against the manifest weight of the evidence cannot be based on insufficient evidence; the decision to grant or deny a new trial is reviewed for abuse of discretion. (December 22, 2014 Cont’d) 2014-L-043 Page ~ 3 ~ STATE OF OHIO, Plaintiff-Appellee v. KYLE J. PERRY, DefendantAppellant Judgment affirmed. See Opinion and Judgment Entry. [CANNON] (GRENDELL) (WRIGHT) CRIMINAL LAW - engaging in a pattern of corrupt activity; R.C. 2923.32; resentence on lesser-included offense following remand; R.C. 2945.75(A)(2); appellate review of felony sentences governed by R.C. 2953.08(G). 2014-L-066 GMAC MORTGAGE, LLC, SUCCESSOR BY MERGER TO GMAC MORTGAGE CORPORATION, Plaintiff-Appellee v. DAVID G. BLAZETIC, et al., Defendant-Appellant. Judgment affirmed. O’Toole, J., concurs in judgment only. See Opinion and Judgment Entry. [RICE] (WRIGHT) (O’TOOLE) CIVIL - foreclosure; Civ.R. 60(B); not timely; third filing; Civ.R. 41(A)(1); double dismissal rule; modification; different contractual obligation; standing; real party in interest; cannot collaterally attack judgment; non-cognizable means to challenge; no intention to defend; no contact with court; no notice of hearing required. PORTAGE 2014-P-0005 STATE OF OHIO, Plaintiff-Appellee v. ROBERT A. DYE, DefendantAppellant. Judgment affirmed. O’Toole, J., dissents with a Dissenting Opinion. See Opinion and Judgment Entry. [RICE] (CANNON) (O’TOOLE) CRIMINAL LAW - post conviction motion; vacate plea and sentence; Anders; no argument; App.R. 16(A)(7); res judicata; were raised or could have been raised; no error. 2014-P-0015 STATE OF OHIO, Plaintiff-Appellee v. PATRICK D. COX, Defendant-Appellant. Judgment affirmed. See Opinion and Judgment Entry. [O’TOOLE] (GRENDELL) (RICE) CRIMINAL LAW - PLEAS, MOTIONS & OTHER HEARINGS - OVI; motion to suppress; field sobriety tests; in deciding whether to administer field sobriety tests a police officer may consider that the odor of alcohol clings to the driver of a multi-passenger vehicle when the driver exits the vehicle. TRUMBULL 2013-T-0125 MARY ELLEN PATRONE, GUARDIAN OF THE PERSON AND ESTATE OF ELEANOR PATRONE, Plaintiff-Appellant v. MICHAEL PATRON, et al., Defendants-Appellees. Appeal dismissed. Wright, J., concurs in judgment only. See Memorandum Opinion and Judgment Entry. [O’TOOLE] (GRENDELL) (WRIGHT) APPELLATE REVIEW - Civ.R. 54(B); R.C. 2505.02(A)(1) and (B); no final appealable order; lack of jurisdiction. (December 22, 2014 Cont’d) 2014-T-0034 Page ~ 4 ~ DAVID G. WEITZEL, et al., Plaintiffs-Appellees v. TRUMBULL COUNTY COMMISSIONERS, et al., Defendant-Appellant Judgment affirmed. See Opinion and Judgment Entry. [CANNON] (RICE) (WRIGHT) SUMMARY JUDGMENT - R.C. Chapter 2744; political subdivision tort immunity; negligent operation of a motor vehicle; whether an officer is responding to an emergency call is a question of fact; willful or wanton misconduct; evidentiary value of documents; genuine issues of material fact. 2014-T-0048 ANNA MUSSON, Plaintiff-Appellee v. CHAD MUSSON, DefendantAppellant. Judgment affirmed. See Opinion and Judgment Entry. [O’TOOLE] (GRENDELL) (WRIGHT) DOMESTIC RELATIONS - CHILD CUSTODY - a trial court's decisions in contempt proceedings are reviewed for abuse of discretion; a trial court does not abuse its discretion in failing to hold a party in contempt for disobedience of a visitation order when that order is confusing. 2014-T-0049 STATE OF OHIO, Plaintiff-Appellee v. JAMAL D. STRICKLAND, Defendant-Appellant Appeal dismissed. See Memorandum Opinion and Judgment Entry. [CANNON] (GRENDELL) (WRIGHT) CRIMINAL LAW - R.C. 2947.23; Article IV, Section 3(B)(2), Ohio Constitution; R.C. 2505.02; denial of a postconviction motion to vacate payment of court costs is not a final, appealable order; res judicata. RELEASED DECEMBER 18, 2014 2014-T-0121 STATE OF OHIO ex rel. RICHARD M. OSBORNE, Relator v. JUDGE EUGENE LUCCI, Respondent. Petition dismissed. See Judgment Entry. [RICE] (CANNON) (GRENDELL)
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