Ninth Appellate District Opinions for April 15, 2013

The Court of Appeals for the Ninth Appellate District released two opinions on Monday, April 15, 2013. The opinions were both civil cases. One was from Lorain County and the other was from Wayne County. 

The Lorain County decision was Hart v. Ridge Tool Co., 2013-Ohio-1487. Mr. Hart filed a worker's compensation claim based on depression and opiate dependence that followed an industrial injury. Ridge Tool is a self-insured employer under the Worker's Compensation Act. The two claims eventually came to the Lorain County Common Pleas Court. At some point the parties informed the Court that they had reached an agreement. The Lorain County Common Pleas Court then entered judgment on both claims, holding that Mr. Hart could no longer pursue his claims. 

Mr. Hart then filed a pro se appeal. Although the Court of Appeals conceded that his argument was not "easily discernible", Mr. Hart cited to R.C. 4123.65 (D), which, "regulates the settlement of workers’ compensation claims by providing for administrative review to protect parties against settlements that are ‘clearly unfair’ or that constitute ‘gross miscarriage[s] of justice." That section also applies to common pleas courts as well as the administrative bodies. See Gibson v. Meadow Gold Dairy, 88 Ohio St.3d 201, 202-203 (2000). 


When there is an settlement between a worker and a self-insured employee, R.C. 4123.65 (C) mandates that each party has 30 days from the date that the settlement is signed to withdrew from the settlement. In this case the trial court entered judgment before the 30 day period expired and there was no evidence that Mr. Hart had signed the settlement agreement. The Court of Appeals reversed and remanded for further proceedings. 

The Wayne County case, State v. Ross, 2013-Ohio-1488, was an appeal from the Wayne County Municipal Court which had convicted Mr. Ross of a marked lanes violation and a seatbelt violation. Originally Mr. Ross had also been charged with driving while under the influence, but those charges were dismissed and there was a bench trial on the remaining two violations. 

Mr. Ross argued on appeal that the evidence was insufficient to convict him of the marked lanes violation. The opinion contains a discussion of the Ninth Appellate District's analysis of the elements of R.C. 4511.33. In that opinion the following language appears:


"Accordingly, we continue to hold that, in order to establish a violation of R.C. 
4511.33, the State must present evidence “that the driver of a vehicle moving either between lanes of traffic or completely out of a lane of traffic failed to ascertain the safety of such movement prior to making the movement.” Barner, 2004-Ohio-5950, at ¶ 14. In the instant matter, the State failed to present any evidence of the foregoing." 

The opinion was a 2-1 decision, with Judge Whitmore dissenting. Both the majority opinion and the dissenting opinion discuss the application of the Ohio Supreme Court decision of State v. Mays, 119 Ohio St.3d 406, 2008-Ohio-4539. That decision involved the constitutionality of a stop based on an observed marked lanes violation, but Judge Whitmore argued that the language of the opinion supports the view that while there are circumstances that allow a motorist to go outside the marked lane of travel, being tired is not one of them. She then goes on to state that since that was the reason given by Mr. Ross for traveling outside of marked lanes, she would affirm the conviction. 

Ninth Appellate District Decisions Released on 3.29.2013

The Ninth District Court of Appeals released 12 opinions on Friday, March 29, 2013. There were two decisions from Medina County appeals, five decisions from Lorain County appeals, and five decisions from Summit County appeals.

The decisions released from Medina County appeals were:

State v. Evans, 2013-Ohio-1216, which involved a petition for post-conviction relief. Mr. Evans appealed from a denial of his petition for post-conviction relief by the trial court. In his petition he claimed that his trial counsel was ineffective in failing to call a witness, in failing to use information to impeach the State's witnesses, and in failing to inform him of plea negotiations. At a hearing scheduled on his petition, Mr. Evans failed to produce witnesses that he claimed would support his allegations. The trial court overruled his petition for post-conviction relief. The Court of Appeals applied an abuse of discretion standard to the appeal and affirmed the trial court's ruling.

State v. Schmolz, 2013-Ohio-1220, which involved the issue of whether the trial court erred by allowing the State to amend the indictment during trial. The indictment charged Ms. Schmolz with receiving stolen property. The property was described as a "license plate". During trial the State established that the property was a "temporary license placard". Both kinds of property are covered by R.C. 2913.71(C), which makes theft offenses involving such property felonies of the fifth degree. The Court of Appeals found that the amendment did not change the identity of the offense, which was receiving stolen property, nor the penalty, since theft offenses involving both "license plates" and "temporary license placards" are fifth degree felonies. Therefore the Court of Appeals affirmed Ms. Schmolz's conviction.

The decisions released from Lorain County appeals were:

Billi v. Moyse-Morgan Ents. Inc., 2013-Ohio-1214, which involved an appeal from the granting of a motion for summary judgment. The Plaintiff, who was the appellant, alleged two claims of negligence against the Defendants, who were owners and employees of a bar. The first claim was for negligence and the second was for a violation of Ohio's Dram Shop Act. The Court of Appeals affirmed the trial court's granting of the motion for summary judgment on the negligence claim, but reversed the trial court's granting of the summary judgment motion on the Dram Shop Act claim.

Gargasz v. Lorain Cty., 2013-Ohio-1218, concerned an appeal from a declaratory judgment. The Court of Appeals reversed the trial court finding that the trial court's judgment entry did not declare the "rights and responsibilities of the parties". Since the trial court's entry did not make such declarations, the judgment was not a final and appealable order. The trial court's judgment entry was an entry that stated that it was granting the Defendants' motion for summary judgment and denying the Plaintiffs' motion for summary judgment. The Court of Appeals held that such an entry did not comply with R.C. R.C. 2721.02(A) which expressly provides that a “declaration has the effect of a final judgment or decree[]” and that a declaration is “either affirmative or negative in form[.]”

Strickler v. First Ohio Banc & Lending, Inc.,2013-Ohio-1221, which was an interlocutory appeal from an order by the Lorain County Common Pleas Court granting class certification. The Court of Appeals affirmed the class certification made by the Lorain County Common Pleas Court. The class action is based on allegations that First Ohio had failed to provide buyers with disclosure statements that complied with R.C. 1322.062. The class action is directed at First Banc and at the sureties who had issued mortgage broker bonds to First Ohio and its employees. The decision contains a discussion on what the role of a trial court is in determining whether to grant class certification.

Young v. Conry, 2013-Ohio-1223 which was an appeal from a decision of the Lorain County Probate Court granting summary judgment to the defendants in a will contest case. The appellants argued that the Probate Court abused its discretion by enforcing a discovery cut-off date and by granting the summary judgment motion. The Court of Appeals affirmed the actions of the Probate Court regarding both allegations of error.

State v. Zepeda-Ramires, 2013-Ohio-1224 which was an appeal from an order of the Lorain County Common Pleas Court requiring payment of a forfeited bond issued by a bonding company in a criminal case. The Court of Appeals noted that the appellants were objecting to what the appellants called the trial court's failure to comply with the statutory requirements for bond forfeiture. The Court of Appeals also noted that the appellants failed to attend hearings that were scheduled on the State's motion to revoke bond and declare the bond forfeited. Since the appellants could have raised these issues at those hearings, the Court of Appeals considered those issues were forfeited on appeal. If an appellate issue is forfeited, then the Court of Appeals can only review under a "plain error" standard, but, in this case, the appellants did not allege "plain error." Therefore the trial court was affirmed.

The decisions released from Summit County were:

Akron v. State Emp. Relations Bd., 2013-Ohio-1213, which was an appeal from a decision of the Summit County Court of Common Pleas that the City of Akron engaged in an unfair labor practice in its dealings with the Fraternal Order of Police during labor negotiations. The Order represents Akron's police officers. Originally the allegation was heard by the State Employment Relation Board, S.E.R.B., which found that the City had engaged in an unfair labor practice. The Common Pleas Court affirmed the order of the S.E.R.B. on an administrative appeal. The Court of Appeals affirmed the Common Pleas Court.

State v. Castagnola, 2013-Ohio-1215, was an appeal from Mr. Castagnola's convictions for multiple offenses in two separate cases. The offenses were described as "criminal damaging, vandalism, criminal trespass, possession of criminal tools, two counts of retaliation, and multiple forfeiture specifications" in one case and "pandering sexually oriented matter involving a minor" in the other case. He was convicted by a jury in the first case and by the trial court in the second case. On appeal he alleged error by the trial court in not suppressing a search and seizure of his computer, by convicting him of the pandering charge on insufficient evidence, by not merging offense, and by imposing consecutive sentences without making required findings. The Court of Appeals affirmed the trial court on the first two assignments of error, reversed and remanded on the merger issue, and, because his sentence may change following the merger, did not address the assignment of error involving the consecutive sentences.

Flaughers v. Thomas, 2013-Ohio-1217 reversed a decision of the Summit County Probate Court that entered a judgment in favor of the defendants/appellees following a jury trial. The issue on appeal involved whether the trial court erred by not granting a motion for summary judgment filed by the plaintiff-appellant. The appellant argued that the United States Bankruptcy Court had determined that the appellees had embezzled assets from the decedent's estate. The appellant had been appointed the administrator of the estate. The Court of Appeals found that the issue of whether the appellees had embezzled or concealed the estate's assets had been determined by the Bankruptcy Court and that determination was res judicata on the Probate Court. The Court of Appeals held that while the issue of liability had been determined, the issue of damages was not reached by the Bankruptcy Court. It remanded the case to the Probate Court for a determination on that issue.

State v. Lamp, 2013-Ohio-1219 reversed a decision of the Summit County Common Pleas Court which had granted the defendant's motion to dismiss the case on grounds of double jeopardy. Mr. Lamp had been charged with breaking and entering in the Common Pleas Court, a fifth degree felony, and with theft in a municipal court, a first degree misdemeanor. After pleading guilty to the theft charge, he filed the motion for dismissal on double jeopardy grounds. The trial court granted the motion, but the Court of Appeals reversed. The appellate court found that when determining whether there is a double jeopardy violation for successive prosecutions, the trial court must examine the elements of each offense. In this case the trial court did not conduct an examination of the elements of each offense, but focused on whether there was a merger of the two offenses. The Court of Appeals reversed and remanded so that the trial court could conduct an examination of the elements to determine if either statute required proof of a fact that the other statute did not require.

Rivers v. Cashland, 2013-Ohio-1225 was an appeal from a decision of the Summit County Court of Common Pleas granting summary judgment on several claims raised by the plaintiff-appellant. The claims included disability discrimination, racial discrimination, sexual discrimination, retaliatory discharge for filing a worker's compensation claim, retaliation for making a discrimination complaint, negligent supervision and training, and intentional infliction of emotional distress. The Court of Appeals reversed the trial court on the claims regarding disability discrimination, racial discrimination, sexual discrimination, retaliatory discharge for filing a worker's compensation claim, and negligent supervision and training. It affirmed the trial court on the granting of summary judgment on the issues of retaliation for making a discrimination claim and for intentional infliction of emotional distress. The case was then remanded for further proceedings.

Ninth District Court of Appeals Releases Seven Opinions on Monday, March 18, 2013

The Court of Appeals for the Ninth Appellate District, which covers Lorain, Medina, Summit, and Wayne Counties released seven opinions on Monday, March 18. Five were from Medina County, one was from Lorain County, and the remaining opinion was from Wayne County.

The five opinions from Medina County were: 

Sturdevant v. Likley, 2013-Ohio-987, which deals with the torts of defamation, false light, and intentional infliction of emotional distress. The appellant was appealing the granting of a motion for summary judgment. The opinions contains a discussion of the Restatement of Torts, 2nd, Sections 602 and 652. The decision affirmed the trial court's granting of the motion for summary judgment. 

State v. Samples, 2013-Ohio-986, which deals with the issue of sufficiency of the evidence in a case involving driving while under the influence. The Court of Appeals found that the evidence was insufficient to sustain a conviction for operating while under the influence of a drug of abuse. In particular the Court noted that the State had not produced evidence showing what "drug of abuse" Mr. Samples had consumed. Since the term "drug of abuse" is the same as the term "controlled substance" used in a different section of the Revised Code, and since that section lists the names of "controlled substances", it was necessary for the State to establish the identity of the "drug of abuse." The Court reversed Mr. Samples' conviction. 

State v. Miller, 2013-Ohio-985, which deals with the issues of whether a Ohio State Highway Patrol Trooper had a reasonable suspicion to justify the continued detention of a car's operator who had originally been stopped for expired license plates, and whether the consent of the driver to a search was voluntary. The Court of Appeals overruled the first assignment of error, but granted the second assignment. Although there were three assignments of error listed, since the Court of Appeals reversed on the second assignment. the Court did not issue any decision on the third assignment. 

Michaels v. Michaels, 2013-Ohio-984, which deals with the issue of spousal support and contempt of court for non-payment of spousal support. The issue of spousal support dealt with whether the husband, who was obligated to pay spousal support, had shown a significant change of circumstances to justify a modification of his support order. The trial court concluded that he had, and the Court of Appeals affirmed that decision. On the second assignment of error, the Court of Appeals held that the doctrine of res judicata barred the wife from raising the issue on the appeal covered by the March 18th decision. 

State v. Ibrahim, 2013-Ohio-983, which deals with the issue of whether there was sufficient evidence to allow the State to withstand a motion for a directed verdict made pursuant to Crim. R. 29. The charge involved possession of a controlled substance. The issue on appeal was whether there was enough evidence to allow the jury to find that the defendant constructively possessed the controlled substance. The trial court found that there was, but the Court of Appeals disagreed. The decision contains a discussion of the concept of "constructive possession" and its application to a situation involving multiple occupants of a van, which had been involved in an traffic accident. 

The Lorain County opinion was: 

Bonnette v. Bonnette, 2013-Ohio-981,  which deals with the issue of dismissal of an appeal for failure to file the appeal timely. The opinion contains an interesting discussion of Civ. R. 52, which concerns findings of fact and conclusions of law, and App. R. 4. 

The Wayne County opinion was: 

State v. Hillman, 2013-Ohio-982, which deals with the issue of whether a defendant could raise an issue of withdrawal of a no-contest plea in a post-conviction relief petition when it could have been raised on a direct appeal. The Court of Appeals held that the trial court committed reversible error when it heard the post-conviction relief petition because the issue should have been raised on a direct appeal.