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.
