Ninth District Opinions for Summit County Released on June 28, 2013

The Ninth District Court of Appeals released 10 decisions on June 28, 2013 that were decisions from appeals out of Summit County. My summaries of the opinions appear below. 

In re L.C., 2013-Ohio-2799 was a case out of the Summit County Juvenile Court in which the Court of Appeals affirmed the decision of the trial court to terminate the parental rights of L.C.'s mother. The mother appealed on one assignment of error that the decision was against the manifest weight of the evidence. 

State v. Henderson, 2013-Ohio-2798 was a case out of the Summit County Common Pleas Court. Ms. Henderson appealed from the trial court's order that she make restitution in the amount of $12,000, which was for jewelry that Ms. Henderson had taken from elderly people. The sole assignment of error was that the trial court erred in not complying with R.C. 2929.18(A)(1). That Revised Code section requires that there be a hearing before a trial court orders restitution. In this case the appellate court found that no such hearing was held and reversed the decision and remanded for further proceedings. 

State v. Kracker, 2013-Ohio-2795 was an appeal from Mr. Kracker's conviction in the Summit County Common Pleas Court. Mr, Kracker appealed on a sole assignment of error. The assignment was that the trial court erred in allowing the State to introduce "other acts" evidence. The evidence consisted of Mr. Kracker's convictions for manufacturing meth. While the Court of Appeals agreed in part with Mr. Kracker's argument, it found that the admission of the evidence was harmless in view of the "overwhelming evidence" of Mr. Kracker's guilty. Therefore Mr. Kracker's conviction was affirmed. 

State v. Hulgin, 2013-Ohio-2794 was an appeal from a decision of the Akron Municipal Court denying Mr. Hulgin's motion for relief from judgment under Civ. R. 60 (B). Mr. Hulgin was sued by the State for unpaid University of Akron tuition and fees for the 2002 spring semester. The trial court granted the State's motion for a default judgment. When the State attempted to garnish his wages, he filed the Civ. R. 60 (B) motion. 

The State agreed that Mr. Hulgin alleged a meritorious defense and that he also that the motion was timely filed. The issue in the case was whether he showed "excusable neglect" in not responding to the State's lawsuit. While the trial court found that Mr. Hulgin had not shown "excusable neglect", the Court of Appeals disagreed and reversed the judgment of the Akron Municipal Court. 

Granger v. Auto Owners Ins., 2013-Ohio-2792 was an appeal from a  decision from the Summit County Court of Common Pleas granting a motion for summary judgment filed by Auto Owners Insurance and other defendants. The issue in the lawsuit with Mr. Granger and another plaintiff was whether Auto Owners had a duty to provide a defense to a housing discrimination lawsuit filed against the plaintiffs in Federal Court because of an umbrella policy issued by Auto Owners to Mr. Granger. 

The Court of Appeals found that it had such a duty since the duty to defend is greater than the duty to indemnify and since the allegations of the plaintiff in the Federal Court action included emotional distress. The appellate court found that the action for emotional distress could be construed as an action for personal injury. The policy expressly covered such actions. Therefore the summary judgment granted to the defendants was reversed. 

First Data Merchant Servs. Corp. v. Wright, 2013-Ohio-2791 was an appeal from a decision of the Akron Municipal Court granting a judgment to First Data. The grounds for the appeal were that the trial court didn't have jurisdiction because service of the complaint was never obtained. 

Mr. Wright filed a motion to set aside the judgment. He attached a copy of his affidavit to the motion stating that he never had been served with the complaint. First Data did not file a counter-affidavit, nor did it request a hearing on the motion. The following is a quote from the opinion: “‘It is reversible error for a trial court to disregard the unchallenged testimony that a person did not receive service.’” Wood, 2010-Ohio-1339, at ¶ 12, quoting Jacobs, 2006-Ohio-1312, at ¶ 17." Therefore the appellate court found that Mr. Wright had not been served and that the judgment was void ab initio. The trial court's judgment was reversed. 

Cooper v. BASF, Inc., 2013-Ohio-2790 was an appeal from a decision of the Summit County Common Pleas Court granting a motion for summary judgment in a lawsuit alleging a toxic tort. The plaintiffs appealed on the grounds that the trial court did not consider the affidavit of their alleged expert and that the trial court erred in not granting their motion to strike a reply brief of the defendants. The Court of Appeals found that the affidavit of the expert did not comply with Evid. R. 702. The Court of Appeals also found that the trial court did not abuse its discretion in refusing to strike the reply brief. Therefore the trial court's judgment was affirmed. 

State v. Caynon, 2013-Ohio-2789 was an appeal from a decision of the Summit County Common Pleas Court. The issue on appeal was whether the trial court erred in not granting a motion to suppress evidence. The basis of the motion was that the police violated Ms. Caynon's rights by not having a sufficient basis to stop her car and by searching her car and her person after the traffic stop. The appellate court found that the trial court's denial of the motion to suppress was proper and affirmed Ms. Caynon's conviction. 

State v. Browning, 2013-Ohio-2787 was an appeal from Mr. Browning's conviction for domestic violence following a jury trial. Mr. Browning alleged several assignments of error in his appeal. They included that his conviction was based on insufficient evidence, that it was against the manifest weight of the evidence, and that the trial court erred in admitting a tape of a 9-1-1 call made by his wife, who was the victim. Those assignments of error were overruled. The Court of Appeals, however, did sustain his assignment of error that the trial court erred in assessing court costs without complying with the notice requirements of former R.C. 2947.23(A). Therefore the case was remanded so that the trial court could comply with that Revised Code section.

State v. Anderson, 2013-Ohio-2786 was an appeal from a decision of the Summit County Common Pleas Court convicting Ms. Anderson of aggravated possession of drugs and operating under the influence. The basis of the appeal was that her trial counsel was ineffective. The Court of Appeals found that the appeal was not well taken and affirmed her conviction.