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.
Showing posts with label Court of Appeals for the Ninth Appellate District. Show all posts
Showing posts with label Court of Appeals for the Ninth Appellate District. Show all posts
Monday, July 08, 2013
Sunday, July 07, 2013
Ninth District Opinions for Wayne County Released on June 28, 2013
The Court of Appeals for the Ninth Appellate District released opinions for three Wayne County appeals on June 28, 2013. My summaries of the decisions appear below.
Stephens v. Stephens, 2013-Ohio-2797 was an appeal from a divorce decree issued by the Wayne County Court of Appeals. The Court of Appeals reversed the decision of the Wayne County Common Pleas Court and remanded for further proceedings. The issue was whether Mrs. Stephens was denied a fair trial because the proceedings were held while she was incarcerated and the Common Pleas Court did not provide her with a court-appointed attorney to represent her at the hearing nor was there any provision made for her to appear at the hearing.
The Court of Appeals started its analysis with the observation that "generally prisoners have no constitutional right to be personally present at
any stage of * * * civil proceedings", quoting from Carrion v. Carrion (9th. Dist), 2007-Ohio-6142. The Court noted, however, that under Carrion a trial court is required to engage in an analysis of nine factors as to whether this general rule should or should not be observed. Since there was no indication that the trial court engaged in such analysis, the decision was reversed and remanded for further proceedings.
State v. Maynard, 2013-Ohio-2796 was an appeal from a criminal case heard in the Wayne County Common Pleas Court. The Court of Appeals affirmed. Mr. Maynard appealed on three issues. The first was that his conviction was against the manifest weight of the evidence. The second was that he was denied due process because the State didn't put him on notice it was seeking a conviction on the lesser included offense of attempt. The third was that the trial court applied the attempt statute in such a way as to allow his conviction on a lesser degree of culpability than constitutionally required.
In rejecting all three assignments of error the appellate court noted that there are three types of lesser included offenses. They are attempts, lesser degrees of the indicted offense, and lesser included offenses that are committed when committing or attempting to convict the indicted offense. An example of lesser degree of an indicted offense would be where the State charged a person with a felony theft, but couldn't prove the value was $1,000.00. An example of the third type would be where the State charged a person with assault but could only prove disorderly conduct.
Honabarger v. Wayne Sav. Community Bank, 2013-Ohio-2793 was an appeal from the granting of a motion for summary judgment on the issue of liability in a slip and fall case. The Court of Appeals reversed on the sole assignment of error that there were material issues of fact and therefore summary judgement was inappropriate. In reversing the trial court the appellate court noted that while there was a reference to photographs in the trial court's opinion, the only photographs that were in the record were photographs attached to the defendant's motion. Photographs shown to the plaintiff at his deposition were not included with the deposition when it was filed.
Stephens v. Stephens, 2013-Ohio-2797 was an appeal from a divorce decree issued by the Wayne County Court of Appeals. The Court of Appeals reversed the decision of the Wayne County Common Pleas Court and remanded for further proceedings. The issue was whether Mrs. Stephens was denied a fair trial because the proceedings were held while she was incarcerated and the Common Pleas Court did not provide her with a court-appointed attorney to represent her at the hearing nor was there any provision made for her to appear at the hearing.
The Court of Appeals started its analysis with the observation that "generally prisoners have no constitutional right to be personally present at
any stage of * * * civil proceedings", quoting from Carrion v. Carrion (9th. Dist), 2007-Ohio-6142. The Court noted, however, that under Carrion a trial court is required to engage in an analysis of nine factors as to whether this general rule should or should not be observed. Since there was no indication that the trial court engaged in such analysis, the decision was reversed and remanded for further proceedings.
State v. Maynard, 2013-Ohio-2796 was an appeal from a criminal case heard in the Wayne County Common Pleas Court. The Court of Appeals affirmed. Mr. Maynard appealed on three issues. The first was that his conviction was against the manifest weight of the evidence. The second was that he was denied due process because the State didn't put him on notice it was seeking a conviction on the lesser included offense of attempt. The third was that the trial court applied the attempt statute in such a way as to allow his conviction on a lesser degree of culpability than constitutionally required.
In rejecting all three assignments of error the appellate court noted that there are three types of lesser included offenses. They are attempts, lesser degrees of the indicted offense, and lesser included offenses that are committed when committing or attempting to convict the indicted offense. An example of lesser degree of an indicted offense would be where the State charged a person with a felony theft, but couldn't prove the value was $1,000.00. An example of the third type would be where the State charged a person with assault but could only prove disorderly conduct.
Honabarger v. Wayne Sav. Community Bank, 2013-Ohio-2793 was an appeal from the granting of a motion for summary judgment on the issue of liability in a slip and fall case. The Court of Appeals reversed on the sole assignment of error that there were material issues of fact and therefore summary judgement was inappropriate. In reversing the trial court the appellate court noted that while there was a reference to photographs in the trial court's opinion, the only photographs that were in the record were photographs attached to the defendant's motion. Photographs shown to the plaintiff at his deposition were not included with the deposition when it was filed.
Saturday, July 06, 2013
Ninth District Opinions for Lorain County Released on June 28, 2013
The Court of Appeals for the Ninth Appellate District released two decisions from Lorain County appeals on June 28, 2013. My summaries of these decisions appear below.
State v. Carlton, 2013-Ohio-2788 was a criminal appeal in which the trial court was affirmed. Mr. Carlton cited five assignments of error on appeal.
Mr. Carlton argued that the prosecutor's remarks during opening statement were a misstatement of the law and that even though his lawyer didn't object, the trial court committed plain error in not correcting the assistant prosecutor trying the case.
He also argued that his conviction was against the manifest weight of the evidence and that his motion under Crim. R. 28 should have been granted because the state failed to produce sufficient evidence in its case in chief.
He argued that the trial court erred in allowing in other acts evidence and that the trial court erred in its instructions by not requiring unanimity in the jury's verdicts. That assignment of error relied on an argument that the State had charged him with "multiple acts" while the State argued that it had charged him with "alternative means" of committing the crimes. The Court agreed with the State that the correct analysis was an "alternative means" analysis and not a "multiple acts" analysis. Judge Hensal's decision contains case citations from the Ohio Supreme Court on the "alternative means" versus "multiple acts" analysis and what each analysis requires.
Altercare, Inc. v. Clark, 2013-Ohio-2785 is a case in which both Altercare, inc. and its former employee, Clark, filed appeals from a decision of the Lorain County Common Pleas Court regarding the issue of spoliation of evidence.
Altercare had sued Clark for various causes of action related to her employment as its CEO and Clark had counterclaimed. Before litigation Clark's attorney had sent a letter to Altercare regarding a computer that Clark had used during her employment. Clark's attorney wanted the computer preserved or a mirror image made of its hard drive. During discovery it became apparent that Altercare had not preserved the computer's hard drive or made a mirror image of the hard drive.
The trial court sanctioned Altercare for this spoliation of evidence by dismissing all of its counts against Clark. It did not, however, grant Clark's request for judgment on her counterclaim. Altercare appealed and Clark cross-appealed. Clark, however, failed to submit a merit brief in support of her cross-appeal, so it was dismissed. The Court then affirmed the trial court's decisions regarding the dismissal of the Altercare complaint.
Judge Whitmore's opinion refers to the provision of Civ. R. 37 which concerns the preservation of electronically stored information, (ESI), and the factors that a trial court should consider when deciding to sanction a party for non-compliance.
State v. Carlton, 2013-Ohio-2788 was a criminal appeal in which the trial court was affirmed. Mr. Carlton cited five assignments of error on appeal.
Mr. Carlton argued that the prosecutor's remarks during opening statement were a misstatement of the law and that even though his lawyer didn't object, the trial court committed plain error in not correcting the assistant prosecutor trying the case.
He also argued that his conviction was against the manifest weight of the evidence and that his motion under Crim. R. 28 should have been granted because the state failed to produce sufficient evidence in its case in chief.
He argued that the trial court erred in allowing in other acts evidence and that the trial court erred in its instructions by not requiring unanimity in the jury's verdicts. That assignment of error relied on an argument that the State had charged him with "multiple acts" while the State argued that it had charged him with "alternative means" of committing the crimes. The Court agreed with the State that the correct analysis was an "alternative means" analysis and not a "multiple acts" analysis. Judge Hensal's decision contains case citations from the Ohio Supreme Court on the "alternative means" versus "multiple acts" analysis and what each analysis requires.
Altercare, Inc. v. Clark, 2013-Ohio-2785 is a case in which both Altercare, inc. and its former employee, Clark, filed appeals from a decision of the Lorain County Common Pleas Court regarding the issue of spoliation of evidence.
Altercare had sued Clark for various causes of action related to her employment as its CEO and Clark had counterclaimed. Before litigation Clark's attorney had sent a letter to Altercare regarding a computer that Clark had used during her employment. Clark's attorney wanted the computer preserved or a mirror image made of its hard drive. During discovery it became apparent that Altercare had not preserved the computer's hard drive or made a mirror image of the hard drive.
The trial court sanctioned Altercare for this spoliation of evidence by dismissing all of its counts against Clark. It did not, however, grant Clark's request for judgment on her counterclaim. Altercare appealed and Clark cross-appealed. Clark, however, failed to submit a merit brief in support of her cross-appeal, so it was dismissed. The Court then affirmed the trial court's decisions regarding the dismissal of the Altercare complaint.
Judge Whitmore's opinion refers to the provision of Civ. R. 37 which concerns the preservation of electronically stored information, (ESI), and the factors that a trial court should consider when deciding to sanction a party for non-compliance.
Monday, June 17, 2013
Ninth District Opinions Released on June 12, 2013
The Court of Appeals for the Ninth Appellate District released six opinions on June 12, 2013. All the opinions were for appeals from Summit County cases. My summaries of the opinions appear below.
Wilfong v. Petrone, 2013-Ohio-2434 was an appeal from a decision of the Summit County Common Pleas Court granting the defendants a summary judgment. The sole assignment of error was that the trial court was wrong in finding for the defendants on the allegations of breach of contract, fraud, and recission. The complaint was based on a contract between the parties for the purchase of a home. The plaintiffs claimed that they were not told the extent of water intrusion into the home prior to buying it. The Court of Appeals found that the observations of the plaintiffs prior to buying the home as well as disclosure by the defendants in their real estate sale documents were sufficient to put the plaintiffs on notice as to the existence of the water problems in the home's basements. Therefore the trial court was affirmed.
State v. Turner, 2013-Ohio-2433 affirmed a decision of the Summit County Common Pleas Court convicting the defendant of theft and misuse of credit cards. The opinion by Judge Carr contains an interesting discussion of the difference between the sufficiency of the evidence, which is the issue when a Crim. R. 29 motion is made, and the weight of the evidence. Citing to Ohio Supreme Court opinions Judge Carr points out that when the issue is the sufficiency of the evidence the question is whether the State met is burden of production. When, however, the issue is the manifest weight of the evidence the question is whether the State met its burden of persuasion.
Tillman v. Hyde Park Condominium #3 Owners’ Assn., 2013-Ohio-2432
reversed a decision from the Summit County Common Pleas Court granting attorney fees to the Owner's Association. The appellate court found that the trial erred when adopting findings of its magistrate because it didn't conduct an independent review as required by Civ. R. 53. Tilman's attorney did not file a transcript with her objections to the magistrate's decision but did file an affidavit. Judge Carr's opinion found that the affidavit was not sufficient because the rule requires a transcript if one is available. Here one was available,but not filed, and therefore the affidavit could not be used as a substitute. When a transcript is not filed, then the trial court must accept the magistrate's factual findings but must still conduct an independent review of the magistrate's legal conclusions. In this case that was not done, so the decision was reversed.
Magnum Steel & Trading, L.L.C. v. Mink, 2013-Ohio-2431 affirmed in part and reversed in part a decision from the Summit County Common Pleas Court. Mink argued that the trial court should have granted its motion for summary judgment, that the trial court erred when it didn't grant its motion for a directed verdict and for judgment notwithstanding the verdict and that the jury verdict was against the manifest weight of the evidence. All of those assignments of error were overruled. Magnum's assignments of error were that the trial court should have granted its motion for judgment notwithstanding the verdict apparently on the basis that the jury verdict in its favor on an unjust enrichment claim was inadequate. That assignment of error was rejected. Magnum also argued that the trial court erred in denying a motion for prejudgment interest on its verdict for promissory estoppel. That assignment of error was sustained.
State v. Hendrix, 2013-Ohio-2430 reversed a decision from the Summit County Common Pleas Court granting a motion to suppress. The Court of Appeals found that the entry of the police into the defendant's home was justified due to exigent circumstances which were that the police were responding to an emergency. In this case the appellate court found that the exception applied and reversed the trial court's decision.
State v. Hayes, 2013-Ohio-2429 affirmed a decision of the Summit County Common Pleas Court convicting the defendant of multiple counts of felonious assault, having weapons under a disability, improperly discharging a firearm into a habitation, and possession of heroin. The defendant was also convicted of firearm specifications attached to the various counts. He received 18 years in prison. He appealed alleging that the felonious assault convictions were against the manifest weight of the evidence and that the trial court should have found that more offenses were merged for purposes of sentencing. The appellate court rejected both assignments of error.
Wilfong v. Petrone, 2013-Ohio-2434 was an appeal from a decision of the Summit County Common Pleas Court granting the defendants a summary judgment. The sole assignment of error was that the trial court was wrong in finding for the defendants on the allegations of breach of contract, fraud, and recission. The complaint was based on a contract between the parties for the purchase of a home. The plaintiffs claimed that they were not told the extent of water intrusion into the home prior to buying it. The Court of Appeals found that the observations of the plaintiffs prior to buying the home as well as disclosure by the defendants in their real estate sale documents were sufficient to put the plaintiffs on notice as to the existence of the water problems in the home's basements. Therefore the trial court was affirmed.
State v. Turner, 2013-Ohio-2433 affirmed a decision of the Summit County Common Pleas Court convicting the defendant of theft and misuse of credit cards. The opinion by Judge Carr contains an interesting discussion of the difference between the sufficiency of the evidence, which is the issue when a Crim. R. 29 motion is made, and the weight of the evidence. Citing to Ohio Supreme Court opinions Judge Carr points out that when the issue is the sufficiency of the evidence the question is whether the State met is burden of production. When, however, the issue is the manifest weight of the evidence the question is whether the State met its burden of persuasion.
Tillman v. Hyde Park Condominium #3 Owners’ Assn., 2013-Ohio-2432
reversed a decision from the Summit County Common Pleas Court granting attorney fees to the Owner's Association. The appellate court found that the trial erred when adopting findings of its magistrate because it didn't conduct an independent review as required by Civ. R. 53. Tilman's attorney did not file a transcript with her objections to the magistrate's decision but did file an affidavit. Judge Carr's opinion found that the affidavit was not sufficient because the rule requires a transcript if one is available. Here one was available,but not filed, and therefore the affidavit could not be used as a substitute. When a transcript is not filed, then the trial court must accept the magistrate's factual findings but must still conduct an independent review of the magistrate's legal conclusions. In this case that was not done, so the decision was reversed.
Magnum Steel & Trading, L.L.C. v. Mink, 2013-Ohio-2431 affirmed in part and reversed in part a decision from the Summit County Common Pleas Court. Mink argued that the trial court should have granted its motion for summary judgment, that the trial court erred when it didn't grant its motion for a directed verdict and for judgment notwithstanding the verdict and that the jury verdict was against the manifest weight of the evidence. All of those assignments of error were overruled. Magnum's assignments of error were that the trial court should have granted its motion for judgment notwithstanding the verdict apparently on the basis that the jury verdict in its favor on an unjust enrichment claim was inadequate. That assignment of error was rejected. Magnum also argued that the trial court erred in denying a motion for prejudgment interest on its verdict for promissory estoppel. That assignment of error was sustained.
State v. Hendrix, 2013-Ohio-2430 reversed a decision from the Summit County Common Pleas Court granting a motion to suppress. The Court of Appeals found that the entry of the police into the defendant's home was justified due to exigent circumstances which were that the police were responding to an emergency. In this case the appellate court found that the exception applied and reversed the trial court's decision.
State v. Hayes, 2013-Ohio-2429 affirmed a decision of the Summit County Common Pleas Court convicting the defendant of multiple counts of felonious assault, having weapons under a disability, improperly discharging a firearm into a habitation, and possession of heroin. The defendant was also convicted of firearm specifications attached to the various counts. He received 18 years in prison. He appealed alleging that the felonious assault convictions were against the manifest weight of the evidence and that the trial court should have found that more offenses were merged for purposes of sentencing. The appellate court rejected both assignments of error.
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