Medina County Courthouse

Sunday, April 20, 2014

65th Birthday Pictures

My staff was kind enough to throw me a party on Tuesday, April 15, which was my 65th birthday. Below are some pictures from that day. Thanks to Amanda, Leeanne, Karen and Barb for making all the arrangements. My thanks to all of those who came. It was a very nice day.
This was how it looked from our back deck when I woke up that morning

My administrative assistant, Amanda Armstrong, set up our "smart board" for the party

Birthday cake with the bench festooned for the party

People arriving as my magistrate, Barb Porzio, gets ready to cut pizza sheets

Two of my staff, Karen and Leeann, at the left near the doors talking to guests

Attorney Ed Bowers, his wife, Lynda, and Attorney Mary Beth Corrigan

People at the party in the courtroom. 

More people in the courtroom

Monday, March 24, 2014

Summit County Appellate Decisions for February, 2014

A. L. v. Stephens, 2014-Ohio-677 (Ohio Ct. App., Summit County Feb. 26, 2014) reversed a decision of the Summit County Common Pleas Court because the decision of the magistrate didn't comply with Civ. R. 53. Therefore the civil stalking protection order should not have been issued. 

State v. Brooks, 2014-Ohio-679 affirmed the decision of the trial court since, as Brooks' counsel has argued, there were no appealable issues in the case. The Ninth District conducted its own examination of the record and reached the same conclusion as appellate counsel. 

State v. Davis, 2014-Ohio-687 from Lexis: "HOLDINGS: [1]-Defendant's convictions for aggravated burglary and aggravated robbery were not against the manifest weight of the evidence because any gaps or inconsistencies in the victim's testimony regarding what occurred at his home were not so significant that the jury clearly lost its way when it credited the victim's testimony and convicted defendant." Trial court affirmed. 

State v. Chesrown, 2014-Ohio-680 from Lexis:"HOLDINGS: [1]-Court did not err in failing to hold a hearing prior to denying a petition for post-conviction relief under R.C. 2953.21(E) because petitioner failed to submit evidentiary materials containing sufficient operative facts to demonstrate that he was prejudiced by his trial counsel's alleged ineffectiveness; petitioner simply attached a self-serving affidavit accusing another person of making the videos of the child because "they were of the type that the other person would have produced."" Trial court affirmed. 

State v. Shepherd, 2014-Ohio-686 affirmed the trial court's decision that Mr. Shepherd was not entitled to a hearing on his motion for discharge since he did not provide any authority supporting his arguments. 

Sandor v. Marks, 2014-Ohio-685 affirmed the granting of a motion for summary judgment in favor of an attorney in a legal malpractice case. From Lexis: "HOLDINGS: [1]-A client's legal malpractice claim against an attorney, filed on November 8, 2012, was time-barred by R.C. 2305.11(A) because the attorney established the attorney-client relationship terminated on November 7, 2011, when the attorney sent written notice to the client regarding the termination; the attorney presented a certified mail receipt showing the termination letter was sent on that same day and a time-stamped copy of his notice of withdrawal filed in the underlying action that same day; [2]-Because the trial court did not err in rendering judgment in favor of the attorney on the client's legal malpractice claim, summary judgment was appropriate in favor of the law firm on the client's vicarious liability claim as well."

State v. Hach, 2014-Ohio-682 affirmed the trial court's dismissal of an untimely petition for post-conviction relief.  

State v. Hendricks, 2014-Ohio-683 affirmed the trial court's dismissal of an untimely filed petition for post-conviction relief. 

State v. Lollis, 2014-Ohio-684 from Lexis: "HOLDINGS: [1]-There was sufficient evidence to sustain the aggravated murder conviction under R.C. 2903.01(B) because the text messages provided showed a common plan between defendant and another man to violently rob the victim. The evidence was also sufficient for the jury to reasonably have inferred that defendant had knowledge that the other man would be using a weapon or engaging in violence of a type reasonably likely to produce death, as he instructed the man to "tare em up;" [2]-Although there was no direct evidence that the other man used a gun in the commission of the planned robbery, there existed circumstantial evidence from which a jury could reasonably have inferred that he did so for the firearm specification under R.C. 2941.145(A); [3]-Because aggravated murder was a special felony, defendant was subject to parole, not post-release control on that conviction."

Regions Bank v. Sabatino, 2014-Ohio-580 from Lexis: "HOLDINGS: [1]-The trial court did not err in granting summary judgment to a bank in its suit to recover a debt owed by appellant. That no evidence was presented that the bank ever sent appellant a notice of default was immaterial, because while the parties's agreement required notice of default for suspensions or reductions of credit, it did not require notice of default for termination and acceleration of the obligation." Trial court affirmed. 

State v. Robinson, 2014-Ohio-579 from Lexis: "HOLDINGS: [1]-Given the totality of the circumstances, at the time of the stop, the informant's tip was not sufficiently corroborated to furnish reasonable suspicion that the occupants of the vehicle were committing or about to commit a crime as neither officer was able to verify the significant aspects of the informant's tip that detailed the suspect's future behavior, namely, that the subject, a black male, would go to the restaurant with a white female to complete a drug deal." Trial court reversed. 

Lykes v. Akron Dept. of Public Serv., 2014-Ohio-578 from Lexis:  "HOLDINGS: [1]-The property owner could not argued that his trial counsel was ineffective because he had no right to counsel for purposes of his administrative appeal; [2]-The trial court abused its discretion and acted unreasonably in dismissing the administrative appeal under Civ.R. 41(B)(1) on the basis of his failure to prosecute because it did not consider the unique posture of the administrative appeal before imposing the harshest sanction possible. When he contacted the city after acquiring the property about his options to prevent the demolition of the house he had just purchased, he was advised that his only recourse was to file an administrative appeal, which he did and then sought, albeit clumsily, a stay of the condemnation order and equitable relief from an order which only subsequently implicated his interests after it was issued." Trial court reversed. 

In re T.K., 2014-Ohio-576 from Lexis: "Because the mother not only consented to the award of legal custody to the grandparents, but also specifically waived her right to trial under circumstances where she was represented by counsel, there was nothing in the record to suggest that the mother did not understand the import of her decisions. Thus, the mother could not argue on appeal that the agency failed to make reasonable efforts to eliminate the children’s continued removal from the home under R.C. 2151.419; [2]-In exercising her residual parental privilege to determine the religious affiliation of her child, under R.C. 2151.353(A)(3)(c), the mother could not control the child's every exposure to religion beyond the common understanding of the phrase." Trial court affirmed. 

State v. Litten, 2014-Ohio-577 from Lexis: "HOLDINGS: [1]-Defendant’s convictions for rape and kidnapping, under R.C. 2907.02(A)(2) and R.C. 2905.01(A)(4) were not against the manifest weight of the evidence because the victim, defendant’s 86-year-old grandmother, testified that defendant grabbed her left breast and digitally penetrated her. Although defendant’s daughter did not testify that she heard the victim screaming, defendant’s version of the events also encompassed screaming on the part of the victim; [2]-Pursuant to R.C. 2941.25, the trial court erred by not merging the convictions for rape and kidnapping because the kidnapping was, in fact, incidental to the rape. Defendant’s attack on his grandmother amounted to one continuous course of conduct, he kidnapped her for the sole purpose of raping her, and the kidnapping did not result in an increased risk of harm to the victim, was not prolonged, secretive, or substantial. Judgment affirmed in part, reversed in part, and remanded."

Beasley v. Fischer's Foreign Cars, Inc., 2014-Ohio-678 from Lexis: "HOLDINGS: [1]-A letter written to a magistrate by the owner of a car that objected to the magistrate's calculation of his damages and the date from which interest would accrue with regard to a repair bill refund constituted "written objections" for purposes of Civ.R. 53(D)(3)(b)(i); [2]-The trial court erred in adopting the magistrate's decision on the sole basis that no objections had been filed with regard to the magistrate's decision." Trial court reversed and case remanded. 

Uhl v. McKoski, 2014-Ohio-479 from Lexis: "HOLDINGS: [1]-A decision granting summary judgment in favor of appellees was proper on appellant's claims after she was bitten by a dog, as the trial court did not err in concluding there was no dispute of fact as to whether appellants harbored the dog; in response to summary judgment, appellant did not present evidence that created a material dispute of fact as to whether appellants knew about the dog, there was no evidence that they had been at the premises after the subject property was leased, and there was no evidence that they had seen or were aware of a "Beware of Dog" sign at the premises." Trial court affirmed. 

Tennant v. Gallick, 2014-Ohio-477 from Lexis: "OVERVIEW: HOLDINGS: [1]-Small claims court properly adopted a magistrate's decision to enter a default judgment against an attorney who failed to appear for trial in a small claims action filed by a client, arising from the attorney's failure to timely file an appeal for her son, as agreed, as the fact that the attorney had filed a motion to dismiss did not preclude the default judgment under R.C. 1925.05(A) because no answer was required and the statutory notification indicated that appearance at the hearing was necessary; [2]-Further, as the attorney failed to appear at the small claims trial, he did not present any evidence in support of his objections, such  that his assigned errors lacked merit.OUTCOME: Judgment affirmed."

State v. Culver , 2014-Ohio-681, from Lexis: "HOLDINGS: [1]-Defendant’s convictions for aggravated burglary under R.C. 2911.11(A)(2) and aggravated robbery under R.C. 2911.01(A)(1) were not against the manifest weight of the evidence because the evidence demonstrated that defendant and his brother worked together with the purpose of stealing from the victim through the use of deception. The officer testified that the two witnesses’ statements were consistent with his observations; [2]-Because the trial court did not in reality merge the counts of aggravated burglary and aggravated robbery, but rather effectively ordered them to run concurrently, defendant’s sentence was contrary to law. The second judgment entry of conviction did not indicate which count was merged into the other. OUTCOME: Judgment affirmed in part, reversed in part, and remanded."

Castin, LLC v. First Am. Title Ins. Co., 2014-Ohio-476, from Lexis: "OVERVIEW: HOLDINGS: [1]-A title insurer was not obligated to take any action in regard to a purported defect in a deed because the insured did not suffer loss or damage as a result of a challenge to the title by a third party; rather, all of the damages alleged by the insured arose from its own actions in challenging the title. OUTCOME: Judgment affirmed."

State v. Easley, 2014-Ohio-575, from Lexis: "OVERVIEW: HOLDINGS: [1]-Sufficient evidence supported defendant's conviction for breaking and entering under R.C. 2911.13(A), because he admitted that he was trespassing, copper plumbing was stolen from the house, the back door had been kicked in, and his DNA matched the blood sample found in the kitchen; [2]-The jury concluded that defendant, by force or stealth, unlawfully entered the vacant home with the purpose to commit a theft offense; [3]-Prosecutorial misconduct did not deprive defendant of his right to receive a fair trial; [4]-The prosecutor's comment that no evidence was presented to support defendant's version of the events as described in his opening statement was not improper; [5]-The evidence without the prosecutor's alleged improper rebuttal comment supported defendant's conviction beyond a reasonable doubt. OUTCOME: Judgment affirmed."

State v. Powe, 2014-Ohio-478, affirmed the decision of the trial court denying Powe's motion for merger. Powe argued that he was sentenced for two offenses that were allied offenses of similar import. Powe argued that his sentence was void, but the Court of Appeals has held that failure to merge allied offenses does not result in a void sentence. Further the appellate court held that Powe had waited too long to bring a motion for post-conviction relief. 

State v. Broadt, 2014-Ohio-370, from Lexis: "OVERVIEW: HOLDINGS: [1]-The trial court did not comply with R.C. 2951.041(F) and the requirements of due process when it terminated defendant from the intervention in lieu of conviction progam, as defendant, who had appeared in court for a status call, had no prior notice that she was subject to termination and no opportunity to prepare and present information in her defense. OUTCOME: Reversed and remanded."

State v. Heard, 2014-Ohio-371, affirmed the decision of the trial court denying Heard's motion to withdraw his guilty plea. 

State v. Shover, 2014-Ohio-373, from Lexis: " OVERVIEW: HOLDINGS: [1]-Assuming without deciding, that the Second Amendment extended outside the home, and specifically to motor vehicles, the trial properly concluded that intermediate scrutiny applied to R.C. 2923.16(B), improperly handling a firearm in a motor vehicle, because it acted as a regulation to preserve the safety of Ohio drivers and the State's law enforcement personnel; [2]-The trial court properly reinstated defendant’s conviction for improperly handling firearms in a motor vehicle on remand, after determining that R.C. 2923.16(B) was constitutional; [3]-The trial court failed to comply with the community service notifications in R.C. 2947.23 when it imposed costs at the sentencing hearing; [4]-The trial court erred by failing to consider defendant’s ability to pay under R.C. 2929.19(B) before imposing a $500 fine. OUTCOME: Judgment affirmed in part, reversed in part, and remanded."

State v. South, 2014-Ohio-374, from Lexis:  "OVERVIEW: HOLDINGS: [1]-Defendant failed to show that his counsel was ineffective for failing to file a motion to suppress because the officer testified that the.087 result he received when he performed defendant’s blood alcohol concentration test was an accurate result and that the BAC Datamaster was regularly calibrated for accuracy. The issue regarding exactly when defendant had consumed alcohol (i.e., whether he drank it before or after the crash) was simply a matter of credibility for the trier of fact to determine; [2]-The five-year sentence on his underlying operating a vehicle while under the influence of alcohol (OVI) conviction was contrary to law. Because the current version of R.C. 2929.14 was applicable, defendant’s third-degree OVI felony under R.C. 4511.19(A) was subject to a maximum of 36 months in prison, pursuant to R.C. 2929.14(A)(3)(b). OUTCOME: Judgment affirmed in part, reversed in part, and remanded for resentencing on his OVI conviction."

State v. Wallace, 2014-Ohio-375, from Lexis: "OVERVIEW: HOLDINGS: [1]-The trial court did not err by granting defendant's motion to suppress evidence of marijuana seized by a police officer from the pocket of the sweatshirt that he was wearing at the park, because the State failed to prove that the warrantless search fell under one of the well-delineated exceptions to the warrant requirement of the Fourth Amendment, U.S. Const. amend. IV. 
OUTCOME: Judgment affirmed."

State v. Wilson, 2014-Ohio-376, from Lexis: "OVERVIEW: HOLDINGS: [1]-The trial court did not abuse its discretion in denying defendant’s motion for an identification expert because the motion failed to satisfy his burden of a "particularized showing" that there was a reasonable probability that such an expert would aid in his defense and that he would be denied a fair trial if his request was denied; [2]-The trial court did not abuse its discretion when it found that the recorded jailhouse statements were relevant and admissible because the statements, wherein defendant expressed displeasure about the police stating that there were two victims, indicated he knew that only one person was hit by bullets; [3]-The record was devoid of any evidence that the trial court considered the issue of whether felonious assault and having a weapon while under a disability were allied and of similar import under R.C. 2941.25 prior to imposing sentence.OUTCOME: Judgment affirmed in part, reversed in part, and remanded for a merger determination."

Wuscher v. Wuscher, 2014-Ohio-377, from Lexis: "OVERVIEW: HOLDINGS: [1]-A trial court abused its discretion when considering a wife's motion to modify spousal support because the court refused to consider sources for the husband's income outside of his base salary, which was $ 275,000 in 2012 with a total income of $ 573,600; the parties' financial agreement, incorporated into the divorce decree, indicated their clear intent for the court to address substantial changes in the parties' income not contemplated at the time of the decree; [2]-The court abused its discretion by refusing to modify the husband's child support obligation because the court mistakenly believed the parties agreed to never calculate the child support obligation on income above $ 150,000, and, after failing to properly consider the parties' incomes, the court did not employ the requisite child support computation worksheet, R.C. 3119.022. OUTCOME: Judgment reversed and cause remanded."







Sunday, March 23, 2014

Lorain County Appellate Decision for February, 2014

There were five appellate decisions for Lorain County cases released in February, 2014, by the Court of Appeals for the Ninth Appellate District. Two were appeals from criminal cases, two were appeals from civil cases, and one was an appeal from the Lorain County Juvenile Court regarding termination of a father's parental rights. 

The two civil appellate decisions were Third Fed. S. & L. Assn. v. Haupt, 2014-Ohio-348, released on February 3, 2014 and  Varga v. Drees Co., 2014-Ohio-643, released on February 24, 2014. Both were appeals from decisions of the Lorain County Common Pleas Court. 

The Haupt case involved the issue of whether a trial court errs if it does not give notice of a magistrate's decision under Civ. R. 53. In the Haupt case the record did not reveal that Haupt was served with a copy of the magistrate's order and therefore did not have an opportunity to object to the order granting the bank's motion for summary judgment prior to the trial court adopting the order and granting the bank's motion. 

The Varga case involved the issue of whether a trial court should have stayed a lawsuit between the parties which concerned the building of a residence for the Vargas by the Drees Company. In reversing the trial court the appellate court held that if arguably the causes of action can be related to the subject matter of the contract, and if the contract contains an arbitration clause, then the case must be stayed by the trial court and the parties given the opportunity to arbitrate the dispute. In this case the appellate court found that the issues raised by the Vargas' lawsuit arguably arose out of the contract and therefore the action should be stayed. 

The two criminal appellate decisions were State v. D'Agostino,2014-Ohio-551, and  State v. Marrero, 2014-Ohio-553.

In D'Agostino the appellate court held the following:"[1]-Defendant failed to show that her appointed counsel was suffering from a medical condition that affected her ability to represent defendant; appointed counsel conducted voir dire, gave both the opening statement and closing argument, cross-examined the victim, and conducted the direct examination of defendant; [2]-By having her own expert testify extensively about his methodologies and her credibility, defendant opened the door for the State to rebut that testimony through its expert; as such, defendant could not demonstrate prejudice as a result of her counsel's failure to object to the testimony of the State's expert; [3]-The trial court erred by sentencing defendant for both felonious assault and domestic violence as the offenses were allied offenses of similar import; hence, it was necessary to remand the matter for the trial court to issue a nunc pro tunc entry." (Quote from decision on Lexis."

In Marrero the appellate court found that the defendant had filed a petition for post-conviction relief untimely and therefore the trial court did not have jurisdiction to grant the relief sought. The trial court's dismissal of the petition was affirmed. 

The remaining case was a case from the Lorain County Juvenile Court. The case was captioned In re A.H., 2014-Ohio-552.  In that case the appellate court affirmed the order of the trial court terminating the parental rights of A.H.'s father. From Lexis: "HOLDING: [1]-A father's parental rights over his child were properly terminated because the evidence supported the finding that the child was in the care of the social service agency for the requisite period of time pursuant to R.C. 2151.414(B)(1)(d); [2]-Accordingly, even if the father's challenge to the termination under § 2151.414(E) was not supported by the record, any error was not reversible because it did not result in prejudice to the father; [2]-The record supported the trial court's conclusion that termination of parental rights and permanent custody in the social service agency was in the child's best interests based on consideration of the factors under § 2151.414(D)(1)(a)-(d), the child's need for a secure permanent placement, and the father's inability to provide that."

Tuesday, March 18, 2014

Medina County Appellate Decisions for February, 2014

The Court of Appeals for the Ninth Appellate District released three decisions in February for appeals out of Medina County. All three of them were criminal cases. Two of the cases involved search and seizure issues. The third involved an issue of sufficiency of the evidence. 

The two search and seizure opinions were State v. Harper, 2014-Ohio-347, released on February 3, 2014, and State v. Horvath, 2014-Ohio-641 released on February 24, 2014. 

In the Harper opinion the appellate court reversed the Medina County Court of Common Pleas that had ruled that a traffic stop was based on a reasonable and articulable suspicion and that the Ohio Highway Patrol Trooper making the stop had conducted a valid inventory search. The appellate court disagreed with both of those conclusions. Since the State had introduced evidence seized from Ms. Harper's car at her trial for drug possession her conviction was reversed and the case was remanded. On remand the State moved to dismiss the charge since it could not sustain its burden of proof without the seized evidence. 

In the Horvath opinion the appellate court also reversed the trial court, but in that case the reversal was of the granting of a motion to suppress by the Medina Municipal Court. In Horvath the Medina Municipal Court had ruled that weaving by a motorist within his or her own lane does not constitute a traffic violation and therefore cannot lead to a traffic stop. 

The appellate court held that the case should be remanded to the trial court for that court to determine whether, given the particular facts of the case, Horvath's weaving raised a reasonable suspicion that his operation was impaired. 

State v. Lewis, 2014-Ohio-642, released on February 24, 2014,  concerned the issue of whether the evidence introduced in the Medina County Common Pleas Court was sufficient to sustain a conviction for domestic violence. The appellate court held that it was and affirmed Lewis's conviction, which had resulted in a 10 month prison sentence. 

Wayne County Appellate Decisions for February, 2014

The Court of Appeals for the Ninth Appellate District released one opinion in February for a case out of Wayne County. Poulson v. Fraternal Order of the Eagles, Inc., 2014-Ohio-554, concerned whether the Wayne County Court of Common Pleas had erred in awarding summary judgment to the Fraternal Order of Eagles in a slip and fall case. 

Poulson had brought suit under two theories. One was negligence and the other was negligence per se. The negligence per se cause of action was based on a Wooster, Ohio ordinance that incorporated the Ohio Basic Building Code. The Court of Appeals found that the Eagle's motion for summary judgment had not addressed the cause of action for negligence per se. Therefore the motion for summary judgment should not have been granted on that cause of action. 

The appellate court further found that the motion for summary judgment was well taken with respect to the cause of action for negligence. Therefore the trial court's order was affirmed on that cause of action. 

Friday, February 14, 2014

Summit County Appellate Decisions for January, 2014

State v. Furman, 2014-Ohio-20 affirmed Ms. Furman's conviction for aggravated burglary and aggravated robbery by the Summit County Common Pleas Court. That court sentenced her to 18 years in prison, nine years on each count. In an earlier appeal the Court of Appeals for the Ninth Appellate District ordered a new sentencing hearing so that the trial court could consider whether the two offenses were allied offenses of similar import under a State v. Johnson analysis. The trial conducted such an analysis and found that the offenses were not allied offenses under State v. Johnson and re-sentenced Ms. Furman to 18 years in prison. 

Ms. Furman raised two issues on appeal. The first issue was whether the trial court erred in determining the two offenses were not allied offenses. The second was whether the trial court erred in not giving her a minimum sentence. In both cases the appellate court found that the failure to enter the presentence investigation report into the record meant that the appellate court could not review the sentence and therefore has to presume regularity. Such a presumption meant that the trial court would be affirmed. 

State v. Nichols, 2014-Ohio-102 affirmed a decision of the Summit County Common Pleas Court denying Nichols's motion for post-conviction relief. The appellate court found that he had not established that he was entitled to the relief and therefore affirmed the denial of his petition. 

State v. Rogers, 2014-Ohio-103 affirmed a decision of the Summit County Common Pleas Court convicting Rodgers of a drug offense. Rodgers challenged his conviction on the grounds that the trial court erred in denying him motion to suppress. He argued that the officer who arrested him did not have a reasonable and articulable suspicion that he was committing an offense. He also argued that the trial court relied on facts that were not proved by the hearing. 

In denying Rodger's assignment of error the appellate court noted that Rodgers was operating a motor vehicle with restricted license plates; that he was behind the wheel of a car in a high-crime area; that the car was idling; and that when he asked Rodgers about the restricted operator's license, Rodgers could not verify that he was operating the car for work-related purposes. While the appellate court said that the mere fact that a car has restricted license plates does not, by itself, give rise to a reasonable suspicion, in this case there were other corroborating factors. Therefore the conviction was affirmed. 

Haley v. Nomad Preservation, Inc., 2014-Ohio-181 affirmed a two decisions of the Summit County Common Pleas Court. In one decision the trial court had granted judgment to a defendant after converting a motion to dismiss under Civ. R. 12 (B) into a motion for summary judgment so that it could consider evidence. In the other decision the trial court had granted a motion to dismiss on the grounds that the trial court did not have personal jurisdiction over the moving defendant. 

Haley argued that the trial court erred in considering material outside of the four corners of the motion which, in effect, converted the motion to dismiss into a motion for summary judgment. In rejecting this argument the appellate court wrote the following: "Not only had the trial court considered other evidence the first time it ruled on the motion, this Court explained in its decision that it was proper for the trial court to consider other evidence so long as notice was given. In light of the procedural history of this particular case, we cannot say that the trial court’s consideration of Mr. Ayache’s affidavit was unexpected or that Mr. Haley did not have an adequate opportunity to oppose the evidence." 

The appellate court also found that granting the motion for dismissal because of a lack of personal jurisdiction was also proper. Haley argued that the defendant filing the motion had acted untimely. In rejecting this argument the appellate court wrote the following: "Mr. Haley has not cited any authority suggesting that a party forfeits his right to move to vacate a judgment that was rendered without personal jurisdiction merely because of the passage of time. See Civ.R. 12(H)(1) (setting out specific conditions under which a party waives the defense of lack of jurisdiction over the person); Timekeeping Sys., Inc. v. Safety Protection Universal Ltd., 8th Dist. Cuyahoga No. 99714, 2013-Ohio-3919, ¶ 12."

State v. McDaniel, 2014-Ohio-183 affirmed Mr. McDaniel's convictions for murder and felonious assault. McDaniel argued that the two offenses were allied offenses of similar import and that the State should have been made to elect the offense for which it wanted McDaniel sentenced. The Court of Appeals rejected this assignment of error. It found that under the analysis dictated by State v. Johnson the two offenses were not allied offenses of similar import. 

Ramoso v. Ramoso, 2014-Ohio-28 overruled the assignment of error brought by Mrs. Ramoso. She argued that the Summit County Domestic Relations Court erred by dismissing her objections to a magistrate's decision without a hearing. The Court of Appeals rejected this argument noting that she did not file a transcript with the objections. It pointed out that Civ.R. 53(D)(3)(b)(iii) requires such a transcript and failure to file one allowed the trial court to dismiss the objections. 

State v. Reeves, 2014-Ohio-282 affirmed the conviction of Mr. Reeves for possession of heroin and affirmed the forfeiture of money claimed to be proceeds from the felony drug offense. It also affirmed his conviction for having weapons while under a disability. 

Reeves raised three assignments of error. The first was that the evidence was insufficient to support his conviction. The second was that the guilty verdicts were against the manifest weight of the evidence. The third was that the trial court did not require the State to produce evidence that the order of forfeiture was proportional to the offense. All three assignments of error were overruled. In overruling the third assignment of error the appellate court noted that the law does not require a proportionality review when the property being forfeited is money derived from the offense.   


Tuesday, February 11, 2014

Lorain County Appellate Decisions for January, 2014

State v. Powell, 2014-Ohio-63 affirmed Mr. Powell's conviction for one count of rape. Powell argued on appeal that the verdict, which came after a bench trial, was based on insufficient evidence and was against the manifest weight of the evidence. Both assignments of error were rejected. 

State v. Thomas, 2014-Ohio-64 affirmed a decision of the Lorain County Common Pleas Court denying his motion to "correct" a void decision of that court. Thomas argued that his conviction of aggravated murder was defective because the determination of his guilt wasn't made by a three judge panel. 

The appellate court pointed out that failure to have a three judge panel doesn't deprive a common pleas court of subject matter jurisdiction. If a common pleas court has erred in not having a three judge panel hear a defendant's case, that error must be brought up on a direct appeal, not in a post-conviction proceeding or in a motion for relief pursuant to a writ of habeas corpus. 

Third Fed. S. & L. Assn. v. Haupt, 2014-Ohio-348 reversed a decision by the Lorain County Common Pleas Court granting judgment to Third Federal Savings & Loan. Ms. Haupt argued that she had not been served a copy of the magistrate's decision and therefore didn't have the opportunity to file objections to the decision. The Court of Appeals agreed with her contention. There was also an interesting issue regarding whether the appeal was timely. By a 2-1 decision the Court of Appeals found that it was timely. The dissent believed that the appeal was not timely.  

Wayne County Appellate Decisions for January, 2014

PNC Bank, Natl. Assn. v. West, 2014-Ohio-161 overruled the granting of a motion for summary judgment to the plaintiff by the Wayne County Common Pleas Court. The appellate court found that the "evidence" offered in support of the motion for summary judgment and was intended to establish that the bank had standing to bring the action wasn't admissible under Ohio's Rules of Evidence. Therefore the summary judgment was reversed and the cause remanded back to the trial court. 

State v. Raber, 2014-Ohio-249 affirmed an order of the Wayne County Common Pleas Court denying Mr. Raber's motion to expunge his record or seal his conviction. The basis for the trial court's ruling was that a conviction for the offense of sexual imposition, a third degree misdemeanor, is not one that can be expunged or sealed. The appellate court agreed and affirmed the trial court's ruling. 

Medina County Appellate Decisions for January, 2014

U.S. Bank v. Cooper, 2014-Ohio-61 reversed and remanded the case to the Medina County Common Pleas Court with instructions that the case was to be dismissed. The Coopers had filed a motion to set aside a default judgment that was granted to U.S. Bank by the Medina County Common Pleas Court. 

The trial court denied the Rule 60 (B) motion because the Coopers did not meet the requirements of GTE Automatic Elec., Inc. v. ARC Industries, Inc., 47 Ohio St.2d 146 (1976). In reversing the decision of the trial court the Court of Appeals reasoned that the Coopers were not required to file a motion under Rule 60 (B) because if the bank never had standing to bring the lawsuit then the judgment was void and not just voidable. Since it was void the case was remanded with instructions to dismiss. 

State v. Johnson, 2014-Ohio-62 affirmed Johnson's conviction for two counts of felonious assault and one count of breaking and entering. Johnson argued on appeal that the trial court erred in not giving the "castle doctrine" instruction and in answering questions posed by the jury. 

With respect to the "castle doctrine" Johnson argued that the instruction should have been given because Johnson was in his car and pursuant to R.C. 2901.09(B).  The trial court concluded that the defense wasn't available because under Johnson's version of events he was not in the car when he assaulted the victims. The appellate court found that it could not find that the trial court abused its discretion in refusing to give the instruction and so denied the appeal on that basis. 

With regard to the second assignment of error the appellate court found that Johnson's counsel had agreed to the instruction as given by the trial court. Therefore the assignment was reviewed under a plain error analysis. Under that standard the assignment of error overruled. 

Johnson also alleged that his attorney was ineffective in representing him a trial. The Court of Appeals also rejected that argument. 

Wednesday, January 08, 2014

Summit County Civil Appellate Decisions, December, 2013

The Court of Appeals for the Ninth Appellate District released  numerous opinions on appeals from civil cases from Summit County courts. My summaries of the opinions that I was able to view appear below. 

Stetz v. Copley Fairlawn School Dist., 2013-Ohio-5411, released on December 11, 2013, reversed the Summit County Common Pleas Court's decision that the school district was not entitled to sovereign immunity. The Court of Appeals held that whether the school district is entitled to such immunity depends on a three tier analysis. In this case the trial court did not complete such an analysis and therefore the denial of the motion for summary judgment was reversed and the case was remanded.  

Hendy v. Wright, 2013-Ohio-5786, issued on December 31, 2013, affirmed a decision of the Summit County Common Pleas Court, Domestic Relations Division. The assignments of error broke down into two groups. One group alleged that the trial court had violated Ohio's Code of Judicial Conduct through its orders and the magistrate's recommendations. All of those assignments of error were overruled because the Court of Appeals doesn't have jurisdiction over the enforcement of the Code of Judicial Conduct. 

The other assignments of error were overruled because the appellant had not specifically objected to the trial court's order as required by Civ. R. 53(D)(3)(b). Since such objections weren't filed the only way that the appellant could get relief was to have shown plain error but since he didn't argue plain error nor did he explain why the appellate court should adopt a plain error standard of review. 

Witschey, Witschey & Firestine Co., L.P.A. v. Daniele, Jr.,  2013-Ohio-5724, released on December 26, 2013, reversed and remanded a decision of the Summit County Common Pleas Court that a real estate conveyance wasn't fraudulent under R.C. Chapter 1336. The trial court R.C. 1336.08 (A) to rebut the presumption of fraud that arose because the transferror had not received any compensation for the transfer. The trial court's reasoning was that since the original transfer was a gift then when the defendant son transferred the property back to the defendant parents it was a transfer for valuable consideration or a reasonable equilavent value. The Court of Appeals found that this was not correct. It remanded the case back to the trial court with instructions to use R.C. 1336.04 (A) (1) to the evidence already introduced. 

Black v. Stouffer Realty, Inc., 2013-Ohio-5723 was released on December 26, 2013. Black, Stouffer Realty, and a sales person for Stouffer Realty filed assignments and cross-assignments of error. All the assignments and cross-assignments of error were overruled. 

When the case was submitted to the jury there was a form which allowed the jury to determine whether Black was entitled to attorney fees and punitive damages. The jury indicated that she was entitled to attorney fees but not punitive damages. Black argued that this was an inconsistent verdict and therefore the jury should be re-instructed and returned for further deliberation. The trial court refused. On appeal Black argued that Civ. R. 49 (B) applied to the facts in her case. That Rule deals with the procedure that is to be applied when there are inconsistent answers to jury interrogatories. The appellate court, however, the the form was a a general verdict form and not the same as jury interrogatories. Therefore that assignment of error was overruled. 

Black also assigned as error the use of the verdict form described above. Since Black didn't object at the time the trial court sent the verdict form to the jury she was limited to a plain error analysis. The appellate court found that the trial court did not commit plain error. The other assignments of error made by the parties can be seen by clicking on the link to the opinion above. 

Ward v. Ohio State Waterproofing, 2013-Ohio-5560, released on December 18, 2013, affirmed the decision of the Summit County Common Pleas Court denying a motion to vacate an arbitration award. The Court of Appeals noted that when considering a motion to vacate an arbitration award the court is guided by R.C. 2711.10. That section allows a court to vacate an award if it finds that the award was procured by fraud, corruption or undue means; if there evident partiality or corruption on part of any of the arbitrators; if the arbitrators were guilty of certain specified misconduct; and if the arbitrators exceeded their power, or so imperfectly executed them that final award could not be made. Applying that statute to the facts of the case, the trial court denied the motion. The appellate court affirmed that denial. 

Lasater v. Vidahl, 2013-Ohio-5558, released on December 18, 2013, affirmed a decision of the Summit County Common Pleas Court denying a motion to award attorney fees to the prevailing party in a civil lawsuit. The awarding of attorney fees is allowed in certain circumstances by R.C. 2323.51. The granting of a motion for attorney fees under that section or the denial of attorney fees is reviewed under an abuse of discretion standard. Applying that standard to the facts in this case the appellate court concluded that the denial should be affirmed. 

111 N. Main St., Inc. v. Von Allmen Ents., L.L.C., 2013-Ohio-5554, released on December 19, 2013, affirmed in part and reversed in part a decision of the Summit County Common Pleas Court. The parties had entered into a settlement agreement whereby von Allmen Enterprises and the Von Allmens had agreed that they owed certain sums of money to 111 N. Main Street for arrearages of rent on a lease. Mr. Von Allmen appeared at a settlement conference and agreed that they money was owed and that he personally guaranteed the arrearage amount. When the payments weren't made, 111 N. Main filed a lawsuit seeking to enforce the settlement agreement. 

The Court of Appeals found that the trial court never had personal jurisdiction over the Von Allmens as individuals because service was never obtained on them, they never waived service, or were ever served personally with the motion to enforce the agreement. Since there was no personal jurisdiction then the trial court could not enter judgment against them as individuals. 
The appellate court also considered the assignments of error by Von Allmen Enterprises and overruled them. 

Osburn Towing v. Akron, 2013-Ohio-5409, released on December 11, 2013, reversed a decision of the Summit County Common Pleas Court. The decision was reversed because the appellate court found that the Common Pleas Court did not have subject matter jurisdiction. The reason why the trial court did not have subject matter jurisdiction was that the act that Osburn was complaining about was a legislative act and therefore could not be reviewed under R.C. 2506.01. Since the appellate court found that the trial court did not have subject matter jurisdiction, it did not address the other issues raised on appeal by the City of Akron.