Last week the Court of Appeals for the Ninth Appellate District released 10 opinions for decisions from all four counties that comprise its jurisdiction. My summaries of the opinions are listed below:
Opinions Released on July 24, 2013
BAC Home Loan Serv. v. McFerren, 2013-Ohio-3228 was a decision reversing a Summit County Common Pleas Court decision that granted a foreclosure to Bank of America. The decision was based on the Ohio Supreme Court case of Fed. Home Loan Mtge. Corp. v. Schwartzwald, 134 Ohio St.3d 13, 2012-Ohio-5017. The Court of Appeals determined that Bank of America had not shown that it had standing to bring the foreclosure action. The case was remanded back to the trial court for further proceedings.
In the opinion the Ninth District makes clear that the Bank had to show that it had possession of the note when it filed the foreclosure action as opposed to just showing that the note had been assigned to the Bank prior to filing the foreclosure action. This analysis was based on Ninth District opinions released prior to the Schwartzwald decision.
Hoyle v. DTJ Ents., Inc., 2013-Ohio-3223 was a decision reversing a summary judgment that was granted to the Cincinnati Insurance Company by the Summit County Common Pleas Court. The issue on appeal was whether the insurance company had an obligation to provide a defense to two defendants who were sued as a result of a workplace injury by an employee of one of the defendants. The insurance company argued that it did not have to provide such a defense because the policy in question did not provide coverage for "intentional acts."
The Court of Appeals reversed on the reasoning that while acts with a deliberate intent to injured were excluded from coverage, the policy specifically provided coverage for the following: "...an “intentional act,” which it defines as one where the insured (1) knows of the existence of a dangerous condition within its business operation, (2) knows that if an employee is
subjected to the dangerous condition, then harm to the employee will be a “substantial certainty,” and (3) requires “the ‘employee’ to continue to perform the dangerous task.” The appellate court could not conclude that an act which met the three conditions above would also be an act with a deliberate intent to injure. Therefore summary judgment was not appropriate and the trial court was reversed.
Saxon Mtge. Servs., Inc. v. Whitely, 2013-Ohio-3221 was a decision affirming a denial of a motion to vacate a judgment by the Summit County Common Pleas Court. The reason why the Court of Appeals affirmed the trial court was the proceeds of the foreclosure sale had been disbursed and therefore there was no controversy before the appellate court. The opinion contains a very interesting discussion on the doctrine of mootness at paragraphs numbers 6 through ten.
State v. Ross, 2013-Ohio-3220 was a decision both affirming in part and reversing in part a criminal conviction by the Summit County Common Pleas Court. Ross set forth three assignments of error in his appeal.
The first assignment was that the trial court had not adequately informed him of the rights he was giving up by entering a plea of guilty. The appellate court reviewed the language used by the trial court and found that although the colloquy didn't quote the language of Crim. R. 11 verbatim, it was sufficient to satisfy the requirements of that Rule, especially considering that Ross also signed a written plea waiver form.
The second assignment of error was that the trial court should have held a hearing on his motion to withdraw his plea. At the change of plea hearing the State was recommending a six month prison sentence on both counts to run concurrently. The trial court expressed reservations about imposing the jointly recommended sentences. At the time of the sentence the trial court imposed two sentences of 11 months to run consecutively. (It should be noted that Ross failed to appear at the first scheduled sentencing hearing.)
The Court of Appeals held that the trial court should have held a hearing since (1) the trial court had equivocated on following the recommendations of the State and (2) because Ross maintained he was not guilty of one of the offenses.
State v. Johnson, 2013-Ohio-3218 affirmed Johnson's conviction by the Summit County Common Pleas Court on one count of cocaine trafficking. Johnson argued on appeal that his conviction was based on insufficient evidence and that the jury verdict was against the manifest weight of the evidence. Both arguments were rejected by the Court of Appeals.
JPMorgan Chase Bank v. Byrd, 2013-Ohio-3217 affirmed a decision of the Summit County Common Pleas Court granting a foreclosure to J.P. Morgan. The homeowners argued that the evidence offered by the Bank to obtain a summary judgment wasn't sufficient. In particular they argued that the bank officer who signed the affidavit wasn't identified in the interrogatories they had sent to the bank and that the officer didn't have personal knowledge of the matters attested to in his affidavit. Both arguments were rejected.
Opinions Released on July 22, 2013
State v. New, 2013-Ohio-3193 reversed a decision by the Lorain County Common Pleas Court on an appeal filed by the State of Ohio. The trial court had found that the State had not justified a 35 year delay in bringing a murder charge against New for the death of a woman he was dating. The appeal involved the issue of pre-indictment delay and New's right to a speedy trial. On an appeal involving pre-indictment delay the appellate court defers to the trial court on issues of fact but reviews the case de novo on the application of the law to the facts. Under that standard the Court of Appeals found that the delay was justified, reversed the decision, and remanded for further proceedings.
State v. Martinez, 2013-Ohio-3189 affirmed Martinez's conviction by the Wayne County Municipal Court for domestic violence. Martinez appealed arguing that his conviction was against the manifest weight of the evidence. The Court of Appeals affirmed the conviction.
Kostyo v. Kaminski, 2013-Ohio-3188 affirmed in part and reversed in part the decision of the Lorain County Common Pleas Court granting a summary judgment to Kaminski. The case involved the transfer of money from Mrs. Kostyo to an account controlled by her sister, Kaminski, and a mutual brother of the two women. When the brother died, Kaminski was the sole owner of the account. The litigation started when Kostyo was alive, but when she died, the litigation was continued by her son who was the estate administrator.
Kostyo appealed arguing that the trial court should have denied Kaminski's motion for summary judgment and should have awarded him summary judgment instead. The Court of Appeals affirmed the trial court's denial of Kostyo's motion for summary judgment. It reversed the trial court's finding that Kaminksi was entitled to summary judgment on the issues of unjust enrichment and conversion. The case was then remanded to the trial court for further proceedings.
State v. Bellomy, 2013-Ohio-3187 affirmed Bellomy's conviction by the Medina County Common Pleas Court for violating a civil protection order, which is a fifth degree felony since Bellomy had been convicted of a previous violation. Bellomy appealed citing four assignments of error. He argued that the trial court erred by not giving a mistake of fact instruction; that it erred by not answering a jury request for a definition of negligence; that it erred by not granting a Crim. R. 29 motion; and that it erred by not granting Bellomy the proper jail time credit.
The Court of Appeals found that Bellomy had not preserved the argument that there should have been a mistake of fact instruction because the record didn't contain a copy of his proposed instruction. It found that when his trial counsel agreed with the trial court's decision not to instruct on negligence he waived all but plain error with respect to that assignment and that plain error didn't apply. It found that the trial court properly overruled his Crim. R. 29 motion, and it found that his assignment regarding jail time credit was moot.
Showing posts with label Summit County Court of Common Pleas. Show all posts
Showing posts with label Summit County Court of Common Pleas. Show all posts
Monday, August 05, 2013
Sunday, June 02, 2013
Ninth District Opinions Released on May 29, 2013
The Court of Appeals for the Ninth District released 10 decisions on May 29, 2013. All of the decisions were appeals from Summit County courts. The decisions are as follows:
State v. Stephens, 2013-Ohio-2223 was an appeal from convictions for complicity to commit aggravated murder and robbery. The most interesting issue on appeal was whether the State had violated Stephens' speedy trial rights by not trying him within 270 days. Stephens argued that the triple count provision applied since he was held in jail from the time of his arrest until the time of the trial. The Court of Appeals found that if either the triple count was applied or it wasn't the State brought him to trial within the required time. The opinion deals with the effect of a holder from another county and what happens when the holder is not entered into the record. In this case since Stephens agreed that he had a holder from Stark County and since the holder wasn't introduced into evidence, the Court of Appeals found that the holder applied for the entire period he was awaiting trial.
Spade v. Taliwal, 2013-Ohio-2177 was an appeal by the administrator of an estate for a woman who had died following surgery. On appeal the administrator argued that the trial judge had abused her discretion in refusing to give a jury instruction on concurrent negligence. A majority of the Court of Appeals agreed. There is a very interesting dissent in which the meaning of the phrase "abuse of discretion" is examined. The case was remanded for a new trial on the issue of damages.
State v. Roper, 2013-Ohio-2176 was an appeal by the State in a criminal case in which the State argued that there should have been two consecutive sentences for firearm specifications imposed and not concurrent sentences imposed. The Court of Appeals reversed because it found that while the trial court had merged offenses, the sentencing entry did not reflect that merger. The Court of Appeals went on to state that if an offense merges into another offense, then the trial court cannot impose either a concurrent or consecutive firearm specification sentence for that offense because that would be imposing a "penalty enhancement" under circumstances where no penalty can be imposed on the underlying predicate offense. In short, once an offense is merged into another offense, no penalty can be imposed for the firearm specification that was attached to the merged offense.
Rasberry v. Taylor, 2013-Ohio-2175 was an appeal from the Akron Municipal Court involving a unrepresented appellant and an appellee who was unrepresented at trial in a landlord-tenant dispute. The appellant raised issues regarding the unauthorized practice of law by the landlord and a co-owner of the property that he had rented. The Court of Appeals affirmed the trial court's award of damages as to the one owner, but not as to the other owner.
The appellate court found that the co-owner never signed the complaint but that instead it was signed by Rasberry. Since Rasberry was apparently not an attorney, he couldn't sign on behalf of his co-owner. Therefore, as to the co-owner, the complaint may not have been filed. The appellate court remanded the case to determine the ramifications, if any, from the failure of Rasberry's co-owner to sign the complaint.
Ohio Metal Servs., L.L.C. v. All-In Metals, 2013-Ohio-2174 was an appeal from a decision of the Summit County Court of Common Pleas involving a settlement agreement and proceedings to enforce that agreement. The Court of Appeals affirmed the trial court's rulings.
May v. Lubinski, 2013-Ohio-2173 was an appeal from a decision of the Summit County Common Pleas Court involving a dispute between a trust called the Silver Lakes Estates and property owners in Silver Lakes. The case in the Common Pleas Court centered on the powers of the Board of Trustees. The owners challenged the power of the Trustees to make capital improvements and mandatory assessments for such improvements and to make certain expenditures. They also claimed that the Board breached its fiduciary duties to the owners and challenged the qualifications of certain trustees to serve on the Board. The Trust also appealed from the trial court's decision.
The appellate court both affirmed and reversed parts of the trial court's opinion. The appellate court found that the trust language was unambiguous and that there was a genuine issue of material fact whether the trustees had breached their fiduciary duties. The appellate court also found that there was a genuine issue of material fact regarding the qualifications of one of the Board members to serve as trustee. The appellate court also found that the trial court's finding that a person serving as a trustee was not properly appointed was erroneous but its finding that another trustee was not properly serving was correct.
State v. Ibn-Ford, 2013-Ohio-2172 concerned an appeal from convictions for one count of rape and four counts of domestic violence. The defendant alleged several grounds of error, but the Court of Appeals only sustained one. The error sustained was whether the trial court had complied with R.C. 2947.23(A) when it imposed court costs. The appellate court found that it had not and reversed and remanded on the issue of court costs.
Fuline v. Green, 2013-Ohio-2171 was an appeal from an order of the Barberton Municipal Court ordering that the appellant, Green, pay attorney fees for proceedings following his denial of admissions. The Court of Appeals found that the matters that Green denied were at issue or were of no substantial importance, and therefore, the award of attorney fees to the plaintiffs was improper. The Court of Appeals reversed the trial court's award of attorney fees.
Budd v. Budd, 2013-Ohio-2170 was an appeal from the Summit County Court of Domestic Relations. The appellate court reversed the trial court's order regarding division of property and remanded for further proceedings. Because of its disposition on the first assignment of error, it declined to reach the other assignments of error raised by the appellant.
State v. Brooks, 2013-Ohio-2169 reversed a decision of the Summit County Common Pleas Court imposing consecutive 12 month sentences for two fifth degree felonies. The appellate court affirmed the trial court's imposition of the 12 months sentences. The reversal was because the trial court did not make the factual findings required by R.C. 2929.14(C)(4), as it was worded at the time Mr. Brooks was sentenced.
State v. Stephens, 2013-Ohio-2223 was an appeal from convictions for complicity to commit aggravated murder and robbery. The most interesting issue on appeal was whether the State had violated Stephens' speedy trial rights by not trying him within 270 days. Stephens argued that the triple count provision applied since he was held in jail from the time of his arrest until the time of the trial. The Court of Appeals found that if either the triple count was applied or it wasn't the State brought him to trial within the required time. The opinion deals with the effect of a holder from another county and what happens when the holder is not entered into the record. In this case since Stephens agreed that he had a holder from Stark County and since the holder wasn't introduced into evidence, the Court of Appeals found that the holder applied for the entire period he was awaiting trial.
Spade v. Taliwal, 2013-Ohio-2177 was an appeal by the administrator of an estate for a woman who had died following surgery. On appeal the administrator argued that the trial judge had abused her discretion in refusing to give a jury instruction on concurrent negligence. A majority of the Court of Appeals agreed. There is a very interesting dissent in which the meaning of the phrase "abuse of discretion" is examined. The case was remanded for a new trial on the issue of damages.
State v. Roper, 2013-Ohio-2176 was an appeal by the State in a criminal case in which the State argued that there should have been two consecutive sentences for firearm specifications imposed and not concurrent sentences imposed. The Court of Appeals reversed because it found that while the trial court had merged offenses, the sentencing entry did not reflect that merger. The Court of Appeals went on to state that if an offense merges into another offense, then the trial court cannot impose either a concurrent or consecutive firearm specification sentence for that offense because that would be imposing a "penalty enhancement" under circumstances where no penalty can be imposed on the underlying predicate offense. In short, once an offense is merged into another offense, no penalty can be imposed for the firearm specification that was attached to the merged offense.
Rasberry v. Taylor, 2013-Ohio-2175 was an appeal from the Akron Municipal Court involving a unrepresented appellant and an appellee who was unrepresented at trial in a landlord-tenant dispute. The appellant raised issues regarding the unauthorized practice of law by the landlord and a co-owner of the property that he had rented. The Court of Appeals affirmed the trial court's award of damages as to the one owner, but not as to the other owner.
The appellate court found that the co-owner never signed the complaint but that instead it was signed by Rasberry. Since Rasberry was apparently not an attorney, he couldn't sign on behalf of his co-owner. Therefore, as to the co-owner, the complaint may not have been filed. The appellate court remanded the case to determine the ramifications, if any, from the failure of Rasberry's co-owner to sign the complaint.
Ohio Metal Servs., L.L.C. v. All-In Metals, 2013-Ohio-2174 was an appeal from a decision of the Summit County Court of Common Pleas involving a settlement agreement and proceedings to enforce that agreement. The Court of Appeals affirmed the trial court's rulings.
May v. Lubinski, 2013-Ohio-2173 was an appeal from a decision of the Summit County Common Pleas Court involving a dispute between a trust called the Silver Lakes Estates and property owners in Silver Lakes. The case in the Common Pleas Court centered on the powers of the Board of Trustees. The owners challenged the power of the Trustees to make capital improvements and mandatory assessments for such improvements and to make certain expenditures. They also claimed that the Board breached its fiduciary duties to the owners and challenged the qualifications of certain trustees to serve on the Board. The Trust also appealed from the trial court's decision.
The appellate court both affirmed and reversed parts of the trial court's opinion. The appellate court found that the trust language was unambiguous and that there was a genuine issue of material fact whether the trustees had breached their fiduciary duties. The appellate court also found that there was a genuine issue of material fact regarding the qualifications of one of the Board members to serve as trustee. The appellate court also found that the trial court's finding that a person serving as a trustee was not properly appointed was erroneous but its finding that another trustee was not properly serving was correct.
State v. Ibn-Ford, 2013-Ohio-2172 concerned an appeal from convictions for one count of rape and four counts of domestic violence. The defendant alleged several grounds of error, but the Court of Appeals only sustained one. The error sustained was whether the trial court had complied with R.C. 2947.23(A) when it imposed court costs. The appellate court found that it had not and reversed and remanded on the issue of court costs.
Fuline v. Green, 2013-Ohio-2171 was an appeal from an order of the Barberton Municipal Court ordering that the appellant, Green, pay attorney fees for proceedings following his denial of admissions. The Court of Appeals found that the matters that Green denied were at issue or were of no substantial importance, and therefore, the award of attorney fees to the plaintiffs was improper. The Court of Appeals reversed the trial court's award of attorney fees.
Budd v. Budd, 2013-Ohio-2170 was an appeal from the Summit County Court of Domestic Relations. The appellate court reversed the trial court's order regarding division of property and remanded for further proceedings. Because of its disposition on the first assignment of error, it declined to reach the other assignments of error raised by the appellant.
State v. Brooks, 2013-Ohio-2169 reversed a decision of the Summit County Common Pleas Court imposing consecutive 12 month sentences for two fifth degree felonies. The appellate court affirmed the trial court's imposition of the 12 months sentences. The reversal was because the trial court did not make the factual findings required by R.C. 2929.14(C)(4), as it was worded at the time Mr. Brooks was sentenced.
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