Ninth District Opinions Released on June 24, 2013

The Court of Appeals for the Ninth Appellate District released three opinions on June 24, 2013. Two were from Medina County and one was from Lorain County. 

The case from the Lorain County Common Pleas Court  was State v. Malone, 2013-Ohio-2605, a criminal case in which the Court of Appeals affirmed the trial court's judgment. Mr. Malone cited two assignments of error. The first was that the trial court erred in not allowing him to withdraw his guilty plea. The second was that his counsel was ineffective in not advising him of the strength of the State's case and in not conducting a proper pre-trial investigation. The Court overruled both assignments of error. Judge Carr concurred in the judgment of the Court only since she would have affirmed on the basis of res judicata. She wrote in her concurring opinion that Mr. Malone could have raised these issues on a direct appeal and that since he didn't, he couldn't raise them on this appeal from the trial court's denial of his motion to withdraw his plea. 

The two Medina County cases were both criminal cases out of the Medina County Court of Common Pleas. In one case the appellate court affirmed the trial court and in the other case the court reversed and remanded. 

The case in which the trial court was affirmed was State v. Sebestyen, 2013-Ohio-2606. Mr. Sebestyen appealed from the trial court's decision overruling his motion to withdraw his guilty plea. The Court of Appeals affirmed the trial court's decision under the doctrine of res judicata. The Court noted that Mr. Sebestyen could have raised the issues on a direct appeal. The Court further noted that the fact that Mr. Sebestyen didn't file a direct appeal doesn't stop the doctrine from being applied to his appeal from the decision regarding his motion to withdraw his plea. 

The case in which the trial court was overruled was State v. Labriola, 2013-Ohio-2604. Labriola was convicted after a jury trial of complicity to commit arson. Mr. Labriola raised two assignments of error. The first was that his conviction was not based on sufficient evidence. The Court of Appeals rejected this argument. The second assignment of error was that the assistant prosecutor's comments during closing argument were an impermissible comments on Labriola's credibility and the credibility of other witnesses. The Court of Appeals accepted this assignment of error and reversed his conviction. The case was remanded back to the Common Pleas Court for a new trial. 

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.

Another Take on Issue Preclusion

Below is a decision that I filed today on a motion for dismissal/summary judgment that also involved the issue of collateral estoppal. The issue is somewhat different than the issue presented in an earlier entry on this blog. Please keep in mind that this entry is subject to appellate review. Below is the text of the opinion:


The Farmers Savings Bank (Farmers) has filed a motion for summary judgment alleging that Heartland Homes and Auction Company’s (Heartland) claims against it are barred by the doctrine of res judicata because of settlements entered in prior cases in both the General Division and the Domestic Relations Divisions of the Medina County Common Pleas Court. Farmers was not a party to either of those actions, but Heartland was a party in both actions.

The General Division case was an action brought against Joseph Hartley by Heartland and Dianna Hartley. The Case Number for that case was 02-CIV-0663. The Domestic Relations case was between the two Hartleys, but Heartland was joined as a party. The Case Number for that case was 02-DR-00004. Both cases were settled without a trial. Both cases were settled by the same settlement agreement and Case No. 02-CIV-0663 was then dismissed with prejudice.

Res judicata in Ohio includes both claim preclusion and issue preclusion. Fort Frye Teachers Ass'n v. State Empl. Rels. Bd., ( 1998) 81 Ohio St. 3d 392, 1998 Ohio 435. Issue preclusion is sometimes referred to as the doctrine of collateral estoppal. It precludes the re-litigation of a fact that was actually and directly at issue in a previous proceeding between the same parties or their privies. Ft. Frye, 81 Ohio St. 3d at 395. The requirement that the previous proceeding be between the same parties or their privies is sometimes referred to as the doctrine of “mutuality of estoppal.”

In this case Farmers does not argue that it was a party to the previous litigation or that it was in privty with any parties in either of the two prior cases. Rather, Farmers argues that this Court ought to relax the doctrine of mutuality of estoppal because of the decision of the Ninth Appellate District Court of Appeals, sitting as the Summit County Court of Appeals, in Michaels Building Company v. City of Akron, Case No. 13061.

This Court finds that the Michaels case is not binding on this Court through the doctrine of stare decisis because it was an unreported opinion. Although not binding authority on this Court, it is persuasive authority. In this case, however, the same fact situation does not exist that existed in Michaels Building. In that case Judge Cacioppo relied on an opinion by now Chief Justice Moyers who was on the Tenth Appellate District Court of Appeals. That opinion is McCrory v. Children’s Hospital (1986), 28 Ohio App. 3d 49.

In the McCrory case the Court held that where issues had actually been litigated in the prior proceeding, then the doctrine of mutuality of estoppal would be relaxed and would not require that the present proceeding be between the same parties or their privies. Both in McCrory and in Michaels Building the appeals arose after a trial, not a settlement. Here, in the prior cases, there were no trials, just settlements. Therefore, this Court finds that even if it were to relax the doctrine of mutuality of estoppal it would not do so in cases where the issues sought to be precluded had not been actually litigated. Consequently, this Court finds that summary judgment should not be granted on the basis of res judicata or collateral estoppal.

Farmers has also moved for summary judgment on the grounds that because of the settlement entered into between the parties in the first two cases, there was no damage caused by the tortious actions of Farmers, assuming that such actions occurred. This Court finds, however, that with respect to that argument, which goes to Counts One and Two, there is an issue of material fact and therefore summary judgment is improper.

Finally, Farmers also moves for summary judgment on Count Three of Heartland’s complaint. Again, with respect to that claim, the Court finds that there are issues of material fact and therefore summary judgment is not appropriate on that Count.

The Court consequently overrules the motion for summary judgment and the motion to dismiss for failure to state a claim, which was based on the res judicata argument disposed of above.

SO ORDERED.