Merry Christmas and a Happy 2009

Judge James L. Kimbler wishes Christian visitors to this blog a Merry Christmas, Jewish visitors a Happy Hanukkah, and all others a Happy Holiday Season. May you and your loved ones have a Peaceful and Successful 2009!

Update on Proposed Changes to Civ. R. 4

Medina County Domestic Relations Judge Mary R. Kovack submitted the following concerning proposed changes to Civ. R. 4:

Update on proposed changes to Civ. R. 4.

The comments on the change to plaintiff's service and the elimination of the perfection of "unclaimed" service by regular mail were overwhelmingly negative. 45 lawyers (on behalf of themselves or law firms) opined that the current system for service works well. Sixteen organizations or groups voiced opposition, including: Legal Aid agencies in Columbus, Cincinnati, Cleveland, and Southeastern Ohio; the 1500-member Ohio Association for Justice; the Ohio Child Support Enforcement Agency (CSEA) Directors’ Association and the individual CSEA agencies in Franklin, Clermont, and Montgomery counties; the Litigation Section and the Negligence Law Committee of the OSBA; the Ohio Creditor Attorneys Association; the Akron Bar Association’s Civil Procedure and Appellate Courts Committee; the Crawford County Bar Association; and the Ohio Department of Public Safety. Three subdivisions of the Ohio Judicial Conference voiced opposition: the Civil Law and Procedure Committee, the Domestic Relations Law and Procedure Committee, and the Domestic Relations Judges Executive Committee. Judges and magistrates from six counties also voiced significant concerns about the changes. One pro se litigant also weighed in against the proposed changes.

On December 5th, the Commission on Rules and Procedure voted unanimously to withdraw the proposed changes.
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The only proposed change to Civ. R. 4 that the Commission voted to recommend to the Supreme Court for final approval is the addition of Civ.R. 4.2(G). This provides for service on Limited Liability Companies, a matter not addressed in the current rules.

Rule Amendments Proposed by the Ohio Supreme Court

These are proposed Rule Amendments that were put up for public comment by the Ohio Supreme Court. The comment period ended on November 18, 2008. The information below was obtained from the Ohio Supreme Court website. Rule amendments have to be presented to the Ohio General Assembly by January 15, 2009, and can be revised by the Ohio Supreme Court up until May 1, 2009. Those revisions filed by the Ohio Supreme Court with the Ohio General Assembly by January 15, 2009, and not withdrawn prior to May 1, 2009, are effective July 1, 2009, unless the General Assembly adopts a concurrent resolution of disapproval.

PROPOSED AMENDMENTS TO THE OHIO RULES OF APPELLATE PROCEDURE,OHIO RULES OF CRIMINAL PROCEDURE, and OHIO RULES OF CIVIL PROCEDURE

Comments requested: The Supreme Court of Ohio will accept public comments until November 18, 2008 on the following proposed amendments to the Ohio Rules of Appellate Procedure (4 and 43), Ohio Rules of Civil Procedure (4, 4.1, 4.2, 4.3, 4.4, 4.5, 4.6, 33, 36, 47 and 86), Ohio Rules of Criminal Procedure (24, 32 and 59), and Ohio Rules of Juvenile Procedure (25 and 47)

Comments on the proposed amendments must be submitted in writing to Jo Ellen Cline, Government Relations Counsel, Supreme Court of Ohio, 65 South Front Street, 7th Floor, Columbus, Ohio 43215-3431 or ClineJ@sconet.state.oh.us and received no later than November 18, 2008. Please include your full name and regular mailing address in any comment submitted by e-mail. Copies of all comments submitted will be provided to each member of the Commission on the Rules of Practice and Procedure and each justice of the Supreme Court.

Pursuant to Article IV, Section 5(B) of the Ohio Constitution, proposed amendments to rules of procedure must be filed with the General Assembly by January 15 each year. The Commission on the Rules of Practice and Procedure and the Court will consider all comments received during this first comment period and may modify, add, or withdraw proposed amendments before filing with the General Assembly. Any proposed amendments that are filed with the General Assembly in January 2009 will then be republished for a second comment period and may be further revised by filing revisions with the General Assembly prior to May 1, 2009. Those amendments filed with the General Assembly in January 2009 and not withdrawn prior to May 1, 2009 will take effect on July 1, 2009, unless prior to that date the General Assembly adopts a concurrent resolution of disapproval.

The proposed amendments were recommended to the Supreme Court by the Supreme Court Commission on the Rules of Practice and Procedure, and the Court is seeking comments on the proposed amendments prior to filing any amendments with the General Assembly. Publication for comment at this time does not indicate that the Supreme Court endorses or will approve for filing with the General Assembly any or all of the proposed amendments.

A Staff Note prepared by the Commission on the Rules of Practice and Procedure follows some amendments. Although the Supreme Court uses the Staff Notes during its consideration of proposed amendments, the Staff Notes are not adopted by the Court and are not a part of the rule; they represent the views of the Commission on the Rules of Practice and Procedure and not necessarily those of the Supreme Court. For these reasons, the Staff Notes are not filed with the General Assembly but are included when the proposed amendments are published for comment and are made available to the public and to legislative committees.

Following is a summary of the proposed amendments. In addition to the substantive amendments, nonsubstantive grammar and gender-neutral language changes are made throughout any rule that is proposed for amendment.

Appellate Rule 4

The Commission recommends an amendment to Appellate Rule 4 to correct cross-references to both the Ohio Civil Rules of Procedure and the Ohio Rules of Juvenile Procedure. In 2006, the Court adopted amendments to Civ. R. 53 and Juv. R. 40 regarding magistrates. As a part of those amendments divisions in those rules regarding action on a magistrate’s decision by the Court were renumbered. The proposed amendments correct the cross-references to state the appropriate divisions.

Civil Rules 4 through 4.6

The Commission recommends proposed amendments that would require the plaintiff to make service of process rather than the clerk. The key amendments recommended are as follows:

• Civ. R. 4(A): The clerk issues the summons and delivers it to the plaintiff. The serving party’s postage paid is charged to costs upon presentation of proof. Service by certified mail is deemed complete on the date the return receipt was signed if the plaintiff files proof of service before the answer day. Otherwise, service is deemed complete on the date the plaintiff files proof of service.

• Civ. R 4(B) & (C): Personal and residence service continue to be the duty of the sheriff, bailiff or specially appointed adult. Personal and residence service are deemed complete on the date of service if proof of service is filed prior to the answer day. Otherwise, service is deemed complete on the date proof of service is filed.

• Civ. R. 4.2(G): A provision is added for service on a limited liability company.

• Civ. R. 4.3: Amendments that correspond to those governing in-state service are made to the provisions for service outside of the state.

• Civ. R. 4.6 (C) & (D): The provision for service by ordinary mail if certified mail within the state is “refused” is expressly stated as applicable to service outside the state. The provision for service by ordinary mail if certified mail is “unclaimed” is eliminated.


Civil Rules 33 and 36

In 2004, the Court adopted amendments to Civ. R. 33 and 36 requiring parties propounding interrogatories and requests for admissions to provide the responding party both a written and electronic copy. The amendments adopted, however, did not include a consequence for failing to provide the electronic copy.

The Commission recommends amendments to Civ. R. 33(A) and 36(A) to clarify that the period for responding to interrogatories and requests for admission, which is designated by the propounding party and cannot be less than twenty-eight days, shall run from the day of service of the printed copy of the interrogatories, and that the failure to provide an electronic copy does not alter the response period. However, if the responding party requests that the period be enlarged pursuant to Rule 6(B) because the propounding party has not provided an electronic copy, that reason shall constitute good cause for granting the requested extension, and the court’s order may require that an electronic copy be provided.

The amendment is intended to enforce the duty of the party propounding interrogatories and requests for admissions to provide an electronic copy while prohibiting the responding party served with a printed copy to use the failure to receive an electronic copy as reason to disregard the response time designated in the printed copy.

Civil Rule 47

The Commission recommends amendments to Civ. R. 47 clarifying that alternative methods of jury selection are permissible. The Court amended Civ. R. 47 in 2006; however, language retained in the rule arguably only allows for use of the “strike and replace” method of jury selection. The proposed amendments delete the unnecessary language in Civ. R. 47(C) suggesting that the prospective jurors must be empanelled prior to questioning. The proposed amendments also remove language from Civ. R. 47(B) to make clear that both the “strike and replace method” and the “struck” method are permitted.

Criminal Rule 24

Identical to the proposed amendment to Civ. R. 47, the Commission recommends amendments to Crim. R. 24 to delete language suggesting that prospective jurors must be empanelled prior to questioning. The proposed amendments also remove language to make clear that both the “strike and replace method” and the “struck” method are permitted.

Criminal Rule 32

In response to the Court’s decision in State v. Baker, 2008-Ohio-3330, the Commission recommends an amendment to Crim. R. 32(C) to clarify that a judgment of conviction must set forth the guilty plea, verdict, or findings upon which to conviction is based and the sentence.

Juvenile Rule 25

The Commission recommends amendments to Juv. R. 25 that clarify how depositions are to proceed in juvenile courts. Juvenile courts consider a wide variety of cases including those prosecuted by the State, e.g. delinquency and unruly child offenses, which are analogous to criminal cases. Juvenile courts also hear dependency, neglect and abuse actions and actions to permanently terminate parent’s rights which are civil cases. Their jurisdiction also includes private custody cases and parentage actions.

The proposed amendment will bring some measure of uniformity to depositions. Under the current rule, depositions in custody and parentage actions may only take place upon a showing of “good cause”. Domestic relations courts also hear parentage actions and, in those cases, depositions are conducted pursuant to the Rules of Civil Procedure.

The proposed amendments require depositions in parentage and custody proceedings be conducted pursuant to the Rules of Civil Procedure. The Rules of Civil Procedure would also control depositions taken in post-dispositional matters to which the State is no longer a party. This recognizes that dependency, neglect and abuse cases, as well as custody and parentage cases frequently involve a considerable amount of post-decree litigation when the State is no longer involved. Finally, the proposed amendments state that depositions in delinquency cases, abuse-type actions and other proceedings not covered by other provisions of the rule will be conducted only to preserve testimony in limited circumstances.

LawTalk Show on Foreclosures

John Celebrezze, nephew of the late Anthony Celebrezze, former Mayor of Cleveland, member of John Kennedy's cabinet, and Federal Judge, has started a non-profit corporation called the Celebrezze-Zanghi Community Legal Education Project, or CZCLEP for short. CZCLEP is dedicated to educating the public about the law. John is hosting a television show on public access television in Medina County called LawTalk. He is also posting the show on You Tube. Each show runs about thirty minutes.

Recently, I had the pleasure of being John's guest. We discussed foreclosures, which have been increasing each year in Medina County. The show can be viewed by clicking on the clips below. The show is in three segments due to a You Tube restriction, which requires video clips to be no longer than 10 minutes. I hope you find the show informative.

If you have ideas for future shows, please go to the CZCLEP website, which can be viewed by clicking on the link above.

Standard to be Applied in Civil Rule 50 Motions for Directed Verdict

Trial judges are often faced with the necessity of ruling on a motion for a directed verdict at the end of a party's case. An interesting discussion of the standard that is to be used by a trial judge in ruling on such a motion is found in Heath v. Teich, 2004-Ohio-3389. Here is a quote from that decision:

Pursuant to Civ.R. 50(A)(4), a motion for directed verdict should be granted if, after construing the evidence most strongly in favor of the party against whom the motion is directed, reasonable minds could come to but one conclusion upon the evidence submitted and that conclusion is adverse to such party. Goodyear Tire & Rubber Co. v. Aetna Cas. & Sur. Co., 95 Ohio St.3d 512, 2002-Ohio-2842, at ¶3. The trial court is only required to discern whether there exists any evidence of substantive probative value that favors the position of the non-moving party. Id.; Civ.R. 50(A)(4). The requisite question to ask is: Was there sufficient material evidence presented at trial on this issue to create a factual question for the jury? See Malone v. Courtyard by Marriott L.P. (1996), 74 Ohio St.3d 440. In determining whether to direct a verdict, the trial court does not engage in a weighing of the evidence, nor does it evaluate the credibility of witnesses. Ruta v. Breckenridge-Remy Co. (1982), 69 Ohio St.2d 66, 67-68. Moreover, a motion for directed verdict presents a question of law and is reviewed by this court de novo. Goodyear Tire & Rubber Co., supra, at ¶3.

The way that I read the above is that once such a motion is made, a trial judge examines the evidence to determine whether the non-moving party has introduced evidence that, if believed by the trier of fact, would be sufficient to establish a factual issue for the jury. If the answer is "yes", then the motion is denied, and if the answer is "no", then the motion is granted.

Canon 2 (C) (5) of the Ohio Code of Judicial Conduct

I recently attended a seminar on ethics that dealt with whether a judge or judicial officer can ethically receive any sort of gift. The giving of gifts is covered by Canon 2, (C) (5) of the Ohio Code of Judicial Conduct. Here is a copy of that Canon:

(5) A judge shall not accept and shall urge members of the judge's family residing in the judge's household not to accept a gift, bequest, favor, or loan from anyone except for:

(a) A gift incident to a public testimonial, books, tapes and other resource materials supplied by publishers on a complimentary basis for official use, or an invitation to the judge and the judge's spouse or guest to attend a bar-related function or an activity devoted to the improvement of the law, the legal system, or the administration of justice;

(b) A gift, award, or benefit incident to the business, profession, or other separate activity of a spouse or other family member of a judge residing in the judge's household, including gifts, awards, and benefits for the use of both the spouse or other family member and the judge (as spouse or family member), provided the gift, award, or benefit could not reasonably be perceived as intended to influence the judge in the performance of judicial duties;

(c) Ordinary social hospitality;

(d) A gift from a relative or friend for a special occasion such as a wedding, anniversary, or birthday if the gift is commensurate with the occasion and the relationship;

(e) A gift, bequest, favor, or loan from a relative or close personal friend whose appearance or interest in a case would in any event require disqualification under Canon 3(E).

(f) A loan from a lending institution in its regular course of business on the same terms generally available to persons who are not judges;

(g) A scholarship or fellowship awarded on the same terms and based on the same criteria applied to other applicants; or

(h) Any other gift, bequest, favor, or loan, only if the donor is not a party or other person who has come or is likely to come or whose interests have come or are likely to come before the judge and, if its value exceeds one hundred fifty dollars, the judge reports it in the same manner as the judge reports compensation in division (D) of this canon.
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Judge Kimbler Case on Arbitration Waiver

Below is the body of a judgment entry that Judge Kimbler filed in a civil case. The issue was whether the defendant had waived its rights under a provision of the contract that required that certain disputes be submitted to arbitration. Judge Kimbler found that the defendant had not waived its rights. The case is subject to appeal and could be overturned.

Procedural History

The Plaintiff filed a complaint in this Court seeking damages for a breach of contract. The contract was attached to the complaint. The Defendant filed an motion to dismiss under Civ. R. 12 (B) (6), alleging that the Complaint didn’t state a cause of action because the arbitration clause required the dispute to be referred to arbitration. This Court denied the motion on the grounds that it could not tell from the pleadings whether the arbitration clause was valid. The Defendant then filed an answer and set forth, as an affirmative defense, the arbitration clause.

The parties then took discovery and attended Court hearings regarding this case. The case was set for a non-jury trial. Prior to the trial date, however, the Defendant filed a motion to stay proceedings and refer this case to arbitration. The Defendant asserted that the discovery that was done by the parties shows that the arbitration clause is valid under the law of the United Arab Emirates and that this Court should therefore order the parties to submit to arbitration.


The Plaintiff filed a response alleging that the Defendant has waived its right to arbitration pursuant to R.C. 2711.02. The Plaintiff argues that the procedure that the Defendant should have filed was to demand that the matter be stayed and sent to arbitration rather than filing a motion to dismiss. The Plaintiff further argues that the Defendant compounded the problem it created by its own actions when it engaged in discovery and attended Court proceedings instead of filing a stay and demanding arbitration.

Findings of Fact

In considering the Defendant’s motion to stay, a timeline is helpful. Here are the key events in the case as shown by the docket of the Medina County Clerk of Courts:

1. Complaint filed on September 27, 2007;
2. Service on the Defendant noted on docket on October 12, 2007;
3. Motion to Dismiss filed on December 5, 2007;
4. Non-oral hearing set on December 11, 2007, for December 31, 2007 on Motion to Dismiss;
5. Journal Entry denying Motion to Dismiss filed on February 5, 2008;
6. Answer filed on February 15, 2008;
7. Online Case Management Conference set on March 11, 2008 for April 28, 2008;
8. Defendant requests in-person CMF on April 17, 2008;
9. In-person CMF set for April 28, 2008;
10. Court issues order setting non-jury trial date of October 15, 2008 on May 8, 2008;
11. May 15, 2008 Court orders mediation for September 8, 2008;
12. Between July 3, 2008 and September 25, 2008 parties engage in discovery;
13. On September 25, 2008 the Defendant files its motion to stay proceedings.

Conclusions of Law

With certain exceptions, which don’t apply in this case, Ohio law recognizes the validity of contractual provisions to arbitrate contractual disputes. See R.C. §2711.01 (A).

If an arbitration clause is valid under R.C. §2711.01, et seq., then the jurisdiction of a Ohio common pleas court is limited to confirmation, vacation, modification or enforcement of the award and only on terms provided by statute. See Bordonaro v. Merrill Lynch, Pierce, Fenner & Smith, 163 Ohio App. 3d 410, 2005 Ohio 410, ¶ 4.

A party to such an agreement, however, can waive its right to proceed with arbitration. Since Ohio law favors arbitration, however, a party asserting such waiver bears the burden of establishing such waiver. A party asserting waiver must show (1) the waiving party knew of the existing right to arbitrate; and (2) the totality of the circumstances demonstrate the party acted inconsistently with the known right. See Webb v. ALC of W. Cleveland, Inc., 2008 Ohio 4875, at 9.

If one party to a contract files a lawsuit and the other party believes that there is a valid arbitration clause that limits the jurisdiction of the trial court in which the lawsuit is filed, the non-suing party may file a motion for a stay under R.C. §2711.02.

R.C. §2711.02 does not specify a time period in which a motion to stay must be filed.

Ohio Courts of Appeals have issued various decisions on when a party to an arbitration agreement must file a motion to stay in order to avoid waiving the arbitration clause. The Ninth District Court of Appeals, which is the appellate court that controls decisions of the Medina County Court of Common Pleas, sitting as the Lorain County Court of Appeals, addressed this issue in Austin v. Squire (1997), 118 Ohio App. 3d 35, 691 N.E.2d 1085.

In Austin the following language appears in the opinion by Judge Reece:

Pursuant to R.C. 2711.02, a court may stay trial of an action "on application of one of the parties" if: (1) the action is brought upon any issue referable to arbitration under a written agreement for arbitration, and (2) the court is satisfied the issue is referable to arbitration under the written agreement. When a party does not properly raise the arbitration provision of a contract before the trial court, he is deemed to have waived arbitration. See Jones v. Honchell (1984), 14 Ohio App. 3d 120, 122, 470 N.E.2d 219. "The right to arbitrate can be saved by seeking enforcement of the arbitration clause. This is done under R.C. 2711.02 by application to stay the legal proceedings pending the arbitration. Failure to move for a stay, coupled with responsive pleadings, will constitute a defendant's waiver." Mills v. Jaguar-Cleveland Motors, Inc. (1980), 69 Ohio App. 2d 111, 113, 430 N.E.2d 965. (Footnotes and citations omitted.)

Holding

This Court holds that where a party has filed a motion seeking dismissal of a case because of an arbitration clause, and then, when that motion is denied, files an answer asserting the affirmative defense of the arbitration clause, conducts discovery on the issue of the validity of the arbitration clause, then files a motion to stay proceedings within seven months of the filing of the answer, it has not waived its right to have the matter arbitrated.

Discussion

The defendant in the Austin case waited until he had lost a trial in front of a magistrate of the Elyria Municipal Court before he raised the issue that the contract between the parties required that the dispute be referred to arbitration. When he raised the issue, he did it by filing an objection to the magistrate’s decision, not by filing a motion for a stay. Further, the decision of the appellate court is silent as to whether the defendant ever asserted the defense of the arbitration clause prior to filing his objections.

In this case, however, the Defendant first asserted the defense of the arbitration clause when it filed a motion to dismiss pursuant to Civ. R. 12 (B). Then, after that motion was denied, it set forth the affirmative defense of the arbitration clause in its answer. Although the Defendant did not immediately file a motion for a stay pursuant to R.C. 2711.02, the Plaintiff was clearly on notice that the Defendant believed that his claim for commissions and compensation should be arbitrated pursuant to the contract between the parties.

This Court believes that allowing parties to conduct discovery before filing a motion for a stay is the proper procedure. In conducting such discovery, the Defendant took the Plaintiff’s deposition. In that deposition the Plaintiff stated that he knew the arbitration clause existed and that he did not object to the clause being included in the contract. Further, he testified that the reason why he was filing an action in the Medina County Common Pleas Court was because it was more expedient. Such testimony cuts against any argument that the Defendant by its conduct in relation to the Plaintiff had waived its right to seek arbitration.

Requiring a party to immediately file a motion for a stay without allowing for the conducting of discovery would put trial courts in the position of not possibly having all the facts necessary to make a ruling on the motion for a stay. This particular trial court declines the opportunity to make a ruling that could put it in that position in future cases.

In a reported decision, the Third District Court of Appeals, sitting as the Union County Court of Appeals, wrote the following:

The better rule of law appears to be that a motion for stay of proceedings pending arbitration and a referral to arbitration may be filed after the defending party answers the complaint if (1) the application of the arbitration clause is affirmatively pled in the answer, and (2) the defending parties conduct, based on the totality of the circumstances under Phillips, supra, does not demonstrate a waiver of the clause. Harsco Corp. v. Crane Carrier Co., 122 Ohio App. 3d 406, 415-416 (Ohio Ct. App., Union County 1997)

This Court agrees with the Third District that allowing a party to file an answer setting forth the affirmative defense of an arbitration clause, and then examining the conduct of that party following the filing of the answer is the better way to proceed. This Court, as explained above, go even further than the Third District and hold that conducting discovery doesn’t constitute a waiver if the discovery is, at least in part, directed toward the issue of the validity of the arbitration clause.

Order

Based on the above, therefore, this Court hereby grants the motion to stay proceedings and refers this matter to arbitration as set forth in the contact between the parties.

So Ordered, Adjudged, and Decreed.



______________________________
JUDGE JAMES L. KIMBLER

Proposed Local Rules for Medina County Common Pleas-General Division

Medina County Court of Common Pleas

Rules of the General Division

Effective January 1, 2009Civil Rules

Rule 1 Hours of Session
Rule 2 Assignment of Cases
Rule 3 Leave to Plead
Rule 4 Case Management Conferences
Rule 5 Motions
Rule 6 Motions for Summary Judgment
Rule 7 Motions for Default Judgment
Rule 8 Motions to Continue
Rule 9 Discovery
Rule 10 Dismissals of Actions and Claims
Rule 11 Journal and Judgment Entries
Rule 12 Foreclosures
Rule 13 Bankruptcy
Rule 14 Mediation
Rule 15 Jury Management
Rule 16 Clerk of Courts
Rule 17 Privacy Rights
Criminal Rules
Rule 1 General
Rule 2 Motions
Rule 3 Criminal Pretrials
Rule 4 Intervention in Lieu of Conviction
Rule 5 Adult Probation Department
Rule 6 Assignment and Compensation of Appoint Counsel
Rule 7 Investigators and Experts

RULE 1 Hours of Session

Unless otherwise ordered by the Trial Judge, court shall be in session from 8:00 a.m. to 4:30 p.m. Monday through Friday except for those days designated as legal holidays.

RULE 2 Assignment of Cases

All cases filed in the General Division with the Clerk of Courts shall be assigned to the docket of a specific Judge by lot as required by the Rules of Superintendence for the Courts of Ohio. Counsel, or parties if unrepresented, shall submit all motions and proposed entries only to the Judge or Magistrate assigned to the case unless the Judge to whom the case is assigned has authorized another Judge or Magistrate to act in his or her absence.

RULE 3 Leave to Plead

A party is permitted one automatic leave to plead, not to exceed twenty-eight (28) days, in which to plead to a complaint, counterclaim, cross-claim or third party complaint by filing with the Clerk of Courts a notice of such leave. The notice shall state that no prior extension of time has been granted and must be filed prior to the expiration of the time originally prescribed in the Civil Rules. If an additional extension of time is requested, the party requesting the extension must file a motion.

A party seeking leave to respond to any other pleading, request or motion must do so by written motion. The movant shall prepare a proposed journal entry granting the motion for leave and submit it to the court along with the motion.


RULE 4 Case Management Conferences

The Court may conduct a case management conference for the purpose of scheduling definite trial and/or mediation dates. Pretrial statements are not required. The Court may fix deadlines for completion of discovery, set time limitations for filing dispositive motions, and establish trial procedures. The Court may decide any motions pending in the case at the time of the case management conference. Parties and party representatives need not be present for the case management conference.
In the event an attorney or party fails to appear at a case management conference or other hearing, the Court shall have the authority:

1. To dismiss a claim or motion for want of prosecution on motion of the opposing party.
2. To order sanctions as provided by the Rules of Civil Procedure.
3. To allow parties who are present to proceed with the case ex parte and to decide all matters pending before the Court.
4. To make such orders as the Court may deem appropriate.

RULE 5 Motions

(A) Briefs
Unless otherwise ordered by the Court, motions shall be decided without an oral hearing. All motions shall be accompanied by a memorandum stating the grounds for the motion and citing the authorities relied upon. A supporting or opposing memorandum, including administrative appeals, shall not exceed fifteen (15) pages exclusive of any supporting documents.

(B) Non-oral Hearings
In the event a motion is scheduled for a non-oral hearing, written notice of the hearing date will be sent by ordinary mail to the parties or their counsel. The Court will not consider any responses to a motion unless it is filed prior to the non-oral hearing date. No appearance is necessary for a non-oral hearing.

(C) Oral Hearings
In the event the assigned Judge or Magistrate schedules a motion for an oral hearing, notice shall be sent by ordinary mail or, if an expedited hearing is necessary, notice may be communicated by telephone. Attendance is required. Any written memorandum relating to a motion scheduled for oral hearing must be filed one (1) day prior to the hearing.

(D) Contempt
Post- judgment motions for contempt must be served pursuant to Civ. R. 4 through Civ. R. 4.6.

(E) Copies
Copies of motions filed with the Clerk of Courts need not be delivered to the assigned judge.

(F) Proposed Journal Entries
The movant shall prepare a proposed journal entry granting the motion and submit it to the court along with the motion.


RULE 6 Motions for Summary Judgment

Unless otherwise ordered by the Court, motions for summary judgment will be decided without an oral hearing. A non-oral hearing will be scheduled no sooner than fourteen (14) days after the motion has been filed with the Court.

Unless the Court directs otherwise, any response in opposition may be filed any time prior to the day of the scheduled hearing. Any response not filed prior to the day of the non-oral hearing will not be considered.

Original evidentiary materials as permitted by Civil Rule 56(C) shall be filed with the Clerk of Courts with the original motion. A copy of the motion need not be delivered directly to the assigned Judge.

RULE 7 Motions for Default Judgment

A party seeking default judgment pursuant to Civil Rule 55 shall include with the motion an affidavit of an individual with personal knowledge containing sufficient facts to support the claim. The Court in its discretion may set any motion for default judgment for an evidentiary hearing. A copy of the motion need not be delivered directly to the assigned Judge. The movant shall prepare a proposed journal entry granting the motion for default and submit it to the court along with the motion.

RULE 8 Motions to Continue

(A) Content of Motion
No party shall be granted a continuance of a trial or hearing without a written motion stating the reason for the continuance and whether opposing counsel objects or consents to the continuance. The motion shall contain the written consent of the moving party, except that this requirement may be waived for good cause, provided the motion states the reason why the attorney has been unable to obtain the written consent of the movant. The Court will not consider any motion for continuance due to a conflict of assignment dates unless a copy of the conflicting assignment is attached to the motion.

(B) Journal Entries
The movant shall prepare a proposed journal entry granting the motion continuance and submit it to the court along with the motion. The number of previous continuances granted, the party requesting said continuances, and a space for the new case management conference, trial or hearing date shall be included in the journal entry. Bottom of FormThe new date shall first be obtained from the Court and confirmed with opposing counsel.

RULE 9 Discovery

Counsel shall make a timely and good faith effort to confer and agree to schedules for depositions. Counsel may not schedule a deposition without first consulting with opposing counsel for a mutually agreed-upon date, time and place. Unless otherwise permitted by the Court or agreed to by the parties, depositions must take place in Medina County.

Within such time as not to delay the trial, a party may obtain one automatic leave to respond to discovery, not to exceed twenty-eight (28) days, by filing a notice of such leave. The notice shall indicate that no prior extension of time for discovery has been granted and must be filed prior to the expiration of the time originally proscribed. If any additional extension of time is requested, the party requesting the extension must apply to the Court by written motion.

Counsel shall make every effort to resolve discovery disputes by agreement prior to filing motions with the Court.

RULE 10 Dismissals of Actions and Claims

(A) Dismissal before trial
If a case has settled prior to trial, counsel shall immediately notify the Court and file a stipulation of dismissal or other appropriate entry within thirty (30) days of the date the Court was notified. Failure to do so may result in dismissal of the action or claim after notice to the parties.

(B) Pending cross-claims
Upon the dismissal of any complaint, any pending cross-claims are deemed automatically dismissed without prejudice, unless the cross-claimant files a notice of intent to proceed on the cross-claim within thirty (30) days of the filing of the notice of dismissal.

(C) Failure to Proceed with Trial
If a party seeking affirmative relief fails to appear or is not ready to proceed with trial, the Court may in its discretion dismiss the claim for want of prosecution. In the event Defendant is unprepared to proceed, the Court may proceed with the case.

(D) Costs
Upon voluntary dismissal of any action or claim, court costs associated with that claim shall be assessed to the dismissing parties unless otherwise ordered by the Court.

RULE 11 Journal and Judgment Entries

Unless otherwise directed by the Court, counsel for the party in whose favor a decision or judgment is rendered shall prepare an entry and submit it to opposing counsel within five days of the conclusion of the trial or hearing. Counsel for the adverse party shall approve or reject the entry within three days after receipt. In the event of rejection, the opposing party shall file with the Court a written statement of his objections to the proposed judgment entry.

All entries shall state the claim or motion which is being disposed by the entry, and shall indicate whether it is a final entry. If the entry does not dispose of all claims, it shall specify what claims remain pending. Pursuant to Civil Rule 58, all final entries shall contain instructions to the Clerk of Courts directing her to serve upon all parties not in default for failure to appear notice of the judgment and its date of entry upon the journal.

RULE 12 Foreclosures

(A) Judicial Reports
­ In actions to quiet title, partition and for foreclosure of liens on real property, Plaintiff shall file with the Clerk of Courts a preliminary judicial report within fourteen (14) days after filing the complaint. The preliminary judicial report shall provide evidence of the state of the title to the property in question covering the chain of title for at least forty (40) years and must show all liens and encumbrances on the property, as may appear of record. Where the evidence of title indicates that necessary parties have not been joined in the action, Plaintiff shall cause all necessary parties to be joined and served in accordance with the Rules of Civil Procedure.

Upon failure of Plaintiff to file the preliminary judicial report within fourteen (14) days after the complaint has been filed, any interested party may file such evidence of title within the next fourteen (14) days. The cost of the judicial report shall be taxed as costs.

The preliminary judicial report shall be effective within thirty (30) days prior to the filing of the complaint or other pleading requesting a judicial sale and shall include at least all of the following:

(1) A legal description of each parcel of real estate to be sold at the judicial sale;
(2) The street address of the real estate or, if there is no street address, the name of the street or road upon which the real estate fronts together with the names of the streets or roads immediately to the north and south or east and west of the real estate;
(3) The County Treasurer's permanent parcel number or other tax identification number of the real estate;
(4) The name of the owners of record of the real estate to be sold;
(5) A reference to the volume and page or instrument number of the recording by which the owners acquired title to the real estate;
(6) A description of the record title to the real estate; however, easements, restrictions, setback lines, declarations, conditions, covenants, reservations, and rights-of-way that were filed for record prior to the lien being foreclosed are not required to be included;
(7) The name and address of each lienholder and the name and address of each lienholder's attorney, if any, as shown on the recorded lien of the lienholder.

Failure to file the judicial reports as required by this rule shall be grounds for dismissal of the complaint or other claim seeking foreclosure.

Upon filing a motion for default judgment or motion for summary judgment in a foreclosure case, the movant shall submit a proposed decree of foreclosure. The movant shall also file a final judicial report showing the record state of title from the effective date of the preliminary judicial report to the date of lis pendens.

(B) Medina County Treasurer in Foreclosure Cases
In foreclosure cases, the Medina County Treasurer shall be named as a party defendant, and shall not be served with the complaint unless the lien of the Medina County Treasurer for taxes is being challenged, either as to its amount, or as to priority as first and best lien. If there is a challenge to the amount or priority of the Treasurer’s lien(s), it must be plead in the complaint and the complaint must be served on the Treasurer.

The Medina County Treasurer need not be served with any answer or other pleadings unless the party filing the pleading intends to challenge the taxes claimed by the Treasurer on the tax records, either as to amount, validity, or as to priority as first and best lien. If there is a challenge to the amount or priority of the Treasurer’s lien(s) in any cross-claim or counterclaim, it must be served on the Treasurer.

At least seven (7) days prior to submitting the proposed decree of foreclosure and the journal entry for confirmation of sale to the assigned judge, the entries shall be provided to the Medina County Prosecutor’s Office for approval.

(C) Approval of Legal Description
Prior to filing with the Clerk of Courts, the legal description set forth in the decree of foreclosure and the judgment entry for confirmation of sale must be approved as accurate by the Tax Map Office of Medina County. The legal description may be mailed to the Tax Map Office at the Medina County Administration Building, Room 119, 144 North Broadway, Medina, Ohio 44256 or faxed to 330-764-8797 for approval.

If the legal description and other information set forth in the decree of foreclosure and judgment entry for confirmation of sale are accurate, the Tax Map Office shall affix a written notation on the entry that the legal description has been reviewed and is correct. In the event the Tax Map Office requires that a legal description be redefined before approving same, any expense incurred to obtain the updated legal description shall be taxed as costs.

In a praecipe for order of sale, the legal description must be stamped as approved by the Tax Map Office and must be accompanied by the Property Description Approval Form, which is available on the website for the Medina County Clerk of Courts.

(D) Sheriff’s Sale
In all sales of real estate, except where the purchaser is the holder of the first lien after the amount owed for costs, taxes and assessments, the successful bidder shall pay to the Sheriff ten percent (10%) of the appraised value of the real estate. Payment shall be made by cash, certified check, money order or bank check at the time of the final bid. In the event the successful bidder fails to pay the required deposit, the Sheriff shall disregard the bid, and shall immediately re-offer the property for sale on the same date.

The unpaid balance of the purchase price shall be paid to the Sheriff within thirty (30) days from the date of the Sheriff’s sale. In the event a purchaser fails to pay the balance due on the purchase price and complete the purchase, the purchaser may be held in contempt of court. The Sheriff or other interested party may cause an order to issue commanding the defaulting purchaser to appear before the assigned Judge and show cause why an order of contempt should not issue.

Where the purchaser at the Sheriff’s sale is the holder of the first lien after the amount owed for costs, taxes and assessments, said purchaser shall pay to the Sheriff one percent (1%) of the appraised value by cash, certified check, money order, or law firm check. This provision shall not apply in tax foreclosure cases for non-payment of real estate taxes.

(E) Cancellation of Sheriff’s Sale
Except in the case of bankruptcy, a Plaintiff may withdraw a property from Sheriff’s sale, provided Plaintiff deposits with the Clerk of Courts the sum set forth on the Court Fee Schedule as surety of court costs. The cancellation of the Sheriff’s sale shall be by written motion and shall include a copy of the receipt evidencing payment of the required sum. A Magistrate is authorized to sign an order withdrawing a property from Sheriff’s sale.

RULE 13 Bankruptcy

Whenever a party to an action pending in the Court files for bankruptcy protection, the attorney of record, or the party if acting pro se, shall within five (5) days file written notice of the automatic stay with the Clerk of Courts. The notice shall include the bankruptcy case number, the date the bankruptcy petition was filed, the name of the bankruptcy court and the names of the debtors. The attorney or party shall serve the notice of bankruptcy on other counsel or parties of record in the pending litigation in conformity with Civil Rule 5.

RULE 14 Mediation

(A) General
Upon order of the Court, a civil action filed in this Court may be submitted to mediation as provided in this rule. By participating in mediation, a non-party participant, as defined by Ohio Revised Code Section 2710.01 (D), submits to the Court’s jurisdiction to the extent necessary for enforcement of this rule. Any non-party participant shall have the rights and duties under this rule as are attributed to parties, except that no evidence privilege shall be expanded.

Mediator is defined to mean any individual who mediates cases pursuant to an order of this Court, regardless of whether that individual is an employee, an independent contractor or a volunteer.

(B) Case Selection and Timing for Mediation
All civil cases may be referred to mediation. Before the initial status conference in a case, counsel shall discuss the appropriateness of mediation in the litigation with their clients and with opposing counsel. Mediation shall not be used as an alternative to the prosecution or adjudication of domestic violence, to determine whether to grant, modify or terminate a protection order, to determine the terms and conditions of a protection order, or to determine the penalty for violation of a protection order.

At the initial case management conference the parties and counsel shall advise the Court of the results of their discussions concerning mediation. At that time and at subsequent conferences, if necessary, the Court may explore with the parties and counsel the possibility of using mediation.

(C) Referral to Mediation
The case is referred to mediation by order of the Court. The Court may issue the order on its own motion, upon the motion of counsel, or upon referral by the mediator.

(D) Continuances
Requests for continuances shall be directed to the mediation office. Continuances shall be granted only for good cause shown and after a mutually acceptable date has been determined. No continuance will be granted by the mediation office if the mediation cannot be scheduled prior to the final pretrial or the trial date.

(E) No Stay of Proceedings
All remaining court orders shall remain in effect. No order is stayed or suspended during the mediation process.

(F) Mediation Privilege
Mediation communications are privileged as described in R. C. §2710.03 through R.C. §2710.05.

(G) Client Defined Confidentiality
If the parties believe that confidentiality is necessary, the parties shall effect a written confidentiality agreement prior to the mediation.

(H) Mediator’s Duty
The mediator shall inform the Court who attended the mediation, whether the case settled, and whether efforts to settle the case through mediation are being continued or if the case is being returned to the Court for further proceedings. No other information shall be directly or indirectly communicated by the mediator to the Court, unless all who hold a mediation privilege, including the mediator, have consented to such disclosure. The mediator shall keep mediation communications confidential, unless all who hold a mediation privilege, including the mediator, have consented to such disclosure.

(I) Duties of Attorneys/Parties
Unless otherwise ordered by the Court, trial counsel, all parties, and if applicable, the principal insurance adjuster(s), all with authority to settle, shall personally attend all mediation sessions and be prepared to discuss all relevant issues, including settlement terms. A legal entity must have an agent with authority to settle attend the mediation in addition to counsel.

If counsel or any mediation party becomes aware of the identity of a person or entity whose consent is required to resolve the dispute, but who has not yet been joined as a party in the pleading, they shall promptly inform the mediator as well as the assigned Judge of such fact.

If the opposing parties to any case have either resided in a common residence or are related by blood, adoption, or marriage, and have known or alleged domestic abuse at any time prior to the mediation, then the parties or their counsel have a duty to disclose such information to the mediation staff. Such party shall have a duty to participate in any screening required by Rule 16 of the Rules of Superintendence for the Courts of Ohio both prior to, and, in the mediator’s discretion, during the mediation session(s).
(J) Sanctions
If any of the individuals identified in the above-paragraph fail to attend mediation without good cause, the Court may impose sanctions, including the award of attorney’s fees and other costs, contempt, or other appropriate sanctions.

(K) Immunity
A mediator acting pursuant to this rule shall have all immunity conferred by statute, rule, and common law.

(L) No Advice
The efforts of the mediator shall not be construed as giving legal advice. The Court may have materials for legal or other support services available in the community. The mediator is authorized to provide such resource information; however, such distribution shall not be construed as a recommendation of, or referral to, such resource. The recipient of that information is charged with the duty to evaluate those resources independently.

(M) Administrative Dismissal
If the parties fail to dismiss a settled case within the later of thirty (30) days or the time noted in the entry that gave the Court notice of the settlement, then the Court may dismiss the case administratively. Upon such administrative dismissal, court costs shall be paid from the funds deposited. If court costs exceed the funds deposited, each party shall bear their own costs.

RULE 15 Jury Management

(A) Eligibility and General Administration
Responsibility for administering the jury system will be vested in the Administrative Judge for the Court of Common Pleas, General Division. Procedures concerning jury selection and service are generally governed by Ohio law and Ohio Rules of Court.

The opportunity for jury service shall not be denied or limited on the basis of race, national origin, gender, age, religious belief, income, occupation, disability, or any other factor that discriminates against a cognizable group in the jurisdiction.
All persons shall be eligible for jury service except those who:
1. are less than eighteen years of age;
2. are not citizens of the United States;
3. are not residents of Medina County;
4. are not able to communicate in the English Language;
5. have been convicted of a felony and have not had their civil rights restored.

(B) Jury Source List
The Court hereby adopts an electronic jury pool selection process. Once each year, the list of registered voters shall be obtained from the Medina County Board of Elections in electronic form. The jury source list will be derived from the names shown on the registration list for the most recent past election.

A miscellaneous journal entry signed by the Judges of the General Division shall instruct that upon certification of the list of voters to the Jury Commission by the Medina County Board of Elections and in accordance with a journal entry filed with the Clerk of Courts setting forth the number of prospective jurors to be called, that the drawing of the annual jury list shall proceed until an adequate number of persons are drawn for the coming jury term (year). Pools for the Municipal Courts of Medina County shall be selected in the same manner by journal entry signed by a Judge of the Municipal Court. The output from the computer selection process shall be in the form specified by the Judges of the Court of Common Pleas and the respective Municipal Courts.
(C) Notification and Summoning Procedures
There shall be a notice summoning a person to jury service and the questionnaire eliciting information regarding that person. The juror summons shall be delivered by ordinary mail. The summons shall explain how and when the recipient must respond and the consequences of failure to comply with the summons. The questionnaire shall request only that information essential for determining whether a person meets the criteria for eligibility. The jury questionnaire shall contain the following language:

READ THIS BEFORE ANSWERING –ALL INFORMATION ON THIS FORM MAY BE PUBLICLY DISCLOSED. IF YOU BELIEVE YOUR PRIVACY INTERESTS WILL BE HARMED BY ANSWERING ANY OF THE FOLLOWING QUESTIONS, YOU MAY LEAVE A RESPONSE LINE BLANK AND INDICATE THAT YOU HAVE DONE SO INTENTIONALLY.

The Court will develop uniform policy and procedure for monitoring failures to respond to a summons and for enforcing a summons to report for jury service.
(D) Voir Dire
Voir dire examination shall be limited to matters relevant to determining whether to remove a juror for cause and to determine the juror's fairness and impartiality. Basic background information regarding panel members will be made available to counsel on the day which jury selection is to begin. The Trial Judge shall conduct a preliminary voir dire examination. Subject to the control of the Court, counsel shall then be permitted to question panel members. The Judge will ensure that the privacy of prospective jurors is reasonably protected, and the questioning is consistent with the purpose of the voir dire process. The voir dire process shall be held on the record, unless otherwise ordered by the Court. (E) Jury Deliberations
All communications between the Judge and members of the jury panel during deliberations shall be in writing or on the record in open court. Counsel for each party shall be informed of such communication and given the opportunity to be heard.
Jury deliberations should take place under conditions and pursuant to procedures that are designed to ensure impartiality and to enhance rational decision-making and shall conform to existing Ohio law. A jury should not be required to deliberate after a reasonable hour and on weekends, unless the Trial Judge determines that such deliberations would not impose an undue hardship upon the jurors, and that they are required in the interest of justice.
(F) Monitoring the Jury system
The Court shall monitor the performance of the jury system in order to evaluate: the representativeness and inclusiveness of the jury source list; the effectiveness of qualification and summoning procedures; the responsiveness of individual citizens to jury duty; the efficient use of jurors; and the cost-effectiveness of the jury management system.

(G) Juror Use
The Court shall utilize the services of prospective jurors so as to achieve optimum use with a minimum of inconvenience to jurors. The Court shall determine the minimally sufficient number of jurors needed to accommodate trial.

(H) Jury Facilities
Each Judge is charged with the responsibility of providing jury deliberation rooms conducive to reaching a fair verdict and with the safety and security of the deliberation rooms in conjunction with the Medina County Sheriff. To the extent feasible, court staff will attempt to minimize contact between jurors, parties, counsel, and the public by limiting juror movement to those areas designated for jury assemblage, deliberation, and trial.
RULE 16 Clerk of Courts

(A) Original documents presented for filing with the Clerk of Courts shall not be stapled. All copies of documents presented for time-stamping must be stapled.

(B) Costs
No civil action or proceeding shall be accepted for filing unless there is deposited as security for costs the amount set forth on the Fee Schedule of the Medina County Clerk of Courts. Said Fee Schedule can be found at the Clerk of Courts’ website. If the party initiating a civil action is unable to give security as provided under this rule, that party shall file a poverty affidavit with the complaint. The collection of costs shall be postponed until the case is terminated.

(C) Case Classification
All civil complaints must be accompanied by a Case Designation Form as prescribed by the Court. Said form is available on the website for the Medina County Clerk of Courts.

(D) Instructions for Service
Unless otherwise directed by written instructions, all complaints or other pleadings which initiate a case shall be served by certified mail, return receipt. The Clerk will not serve any other pleading or documents unless accompanied by Instructions for Service. An Instruction for Service form is available on the website for the Clerk of Courts.

(E) Electronic Service of Process
When technology permits, the Clerk of Courts shall issue service of process as provided in Civil Rule 4.1, including “virtual” service of process utilizing advanced U.S. postal technology for delivery of certified mail and receipt of the confirmation of service. The confirmation of service of process served by virtual service shall be made available through the Clerk’s office and/or website.

(F) Court Files
No person, except a Judge of the Court, a Magistrate, or representative of either shall remove any documents or case files from the custody of the Clerk, without the consent of the Judge to whom the case has been assigned. All files must be checked out with a deputy clerk before being removed from the Clerk’s office.

(G) Electronic Filing
Subject to further order of Court, the Medina County Clerk of Courts does not accept for filing pleadings or other papers by facsimile transmission or electronic mail.

(H) Duplication
An individual seeking to have a copy of any court filing must deliver to the Clerk a self-addressed, stamped envelope with sufficient postage and of sufficient size as well as payment of a photocopy fee, when applicable. The Clerk shall provide by U.S. mail, a copy of any original document maintained by its office, except transcripts. The Clerk is not required to send faxed copies of any documents which may be requested.

(I) Disclosure and Duplication of Transcripts
Unless otherwise ordered by the Court, the Clerk of Courts shall allow any individual to examine, but not remove or duplicate, any original transcript of testimony that has been filed with the Clerk. The Clerk shall not provide copies of an original transcript without the permission of the Court Reporter. Copies of transcripts shall be made available upon payment of the photocopy fee set forth in the Fee Schedule.

(J) Subpoenas
Pursuant to Civil Rule 45, if a subpoena is to be served by the Clerk of Courts, Medina County Sheriff, or the Sheriff of another county, the party requesting the subpoena shall provide to the Clerk quadruplicate copies as well as the amount set forth on the Fee Schedule as security for costs.

If the witness being subpoenaed resides outside the county, the fee for one day’s attendance and mileage shall be attached to the subpoena, by a check made payable to the witness. The subpoena shall indicate in the upper right corner the amount of the fee attached as well as the name of the Judge or Magistrate before whom the witness is to appear.
An attorney who has filed an appearance on behalf of a party in an action may sign and issue a subpoena on behalf of the Court in which the action is pending.

RULE 17 Privacy Rights

In order to promote electronic access to case files while also protecting personal privacy and other legitimate interests, parties shall refrain from including, or shall partially redact where inclusion is necessary, the following personal data identifiers from all documents filed with the Court, including exhibits thereto, unless otherwise ordered by the Court:

1. Social Security numbers. If an individual’s Social Security number must be included in a document, only the last four digits of that number should be used.
2. Names of minor children. If the involvement of a minor child must be mentioned, only the initials of that child should be used.
3. Dates of Birth. If an individual’s date of birth must be included in a document, only the year should be used.
4. Financial account numbers. If financial account numbers are relevant, only the last four digits of these numbers should be in the document used.

This rule does is not applicable to Petitions for Civil Stalking Protection Orders.

The responsibility for redacting these personal identifiers rests solely with counsel and the parties. The Clerk shall not review each document for compliance with this rule.
CRIMINAL RULES

RULE 1 General

Criminal cases shall be handled in accordance with the Rules of Criminal Procedure and the Ohio Revised Code.

RULE 2 Motions

(A) Unless otherwise ordered by the Court, motions and other requests in criminal cases shall be filed within thirty-five (35) days after arraignment or seven (7) days before trial, whichever is earlier.

(B) All motions must be supported by a memorandum which contains citations of authority pursuant to Criminal Rule 47.

(C) The defendant shall not be granted a continuance without a written motion stating the reason for the continuance. The motion shall contain the written consent of the defendant, except that this requirement may be waived for good cause, provided the motion states the reason why the attorney has been unable to obtain the written consent of the defendant. The Court will not consider any motion for continuance due to a conflict of assignment dates unless a copy of the conflicting assignment is attached to the motion.


RULE 3 Criminal Pretrials

(A) Criminal cases may be set for pretrial at the time of arraignment, or thereafter, at the discretion of the court. Counsel for the defendant, the defendant, and the prosecutor must appear for all pretrials.

(B) Discovery shall be completed prior to the pretrial and in compliance with Criminal Rule 16.

RULE 4 Intervention in Lieu of Conviction

Upon the filing of a motion pursuant to R.C. §2951.041 and prior to granting Intervention in Lieu of Conviction, the court shall refer the defendant to the Adult Probation Department to determine the defendant’s eligibility.

RULE 5 Adult Probation Department

(A) If ordered by the Court, the Adult Probation Department shall conduct a pre-sentence investigation and submit a pre-sentence report to the Court in all cases where the defendant has pleaded guilty or was found guilty of a crime.

(B) Pre-sentence reports may be prepared and submitted to the Court on motions for Intervention in Lieu of Conviction under R.C. §2951.041, motions for Sealing of Records under R.C. §2953.32 and §2953.52, and motions for Judicial Release under R.C. §2929.20 if required by the Court.

RULE 6 Assignment and Compensation of Appointed Counsel

(A) When it appears to the Court that a defendant in a criminal case is indigent and seeks to have the Court assign counsel, the defendant must execute an Affidavit of Indigency upon the form provided by the Ohio Public Defender. Within seven days of submitting the affidavit to the Court, the defendant shall pay a $25 non-refundable application fee to the Clerk of Court.

(B) The Court shall appoint an attorney at arraignment, or as soon as possible thereafter, to represent an indigent defendant in criminal cases.

(C) Appointed counsel shall be compensated for services and reimbursed for expenses in accordance with the schedule of fees adopted by the Board of County Commissioners. To receive compensation, appointed counsel shall submit to the County Auditor’s office a Motion, Entry and Certification for Appointed Counsel Fees form attesting to the number of hours expended, the work performed, and the actual expenses incurred. The Court, after due consideration, shall determine the amount of compensation within the scheduled limits.

(D) Attorneys assigned to represent indigent defendants in probation violation hearings, extradition hearings, and other criminal matters shall be appointed and compensated in compliance with Local Criminal Rule 6.

(E) Requests for attorney fees and expenses in excess of the scheduled limits shall only be granted upon motion by the assigned counsel. In the event the Court awards extraordinary fees, counsel shall attach a copy of the Motion for Extraordinary Fees and the order granting same to the Motion, Entry and Certification for Appointed Counsel Fees form and submit it to the County Auditor’s Office.

RULE 7 Investigators and Experts

(A) Counsel assigned to represent indigent defendants shall investigate cases to which they have been assigned.

(B) Investigators shall not be employed by assigned counsel unless ordered by the court. In such cases, counsel shall file a motion to hire an investigator at least thirty (30) days before trial. Said motion shall set forth in detail the reasons for the need for an investigator and the approximate expense that would be incurred if the motion were granted. The motion shall only be granted after a hearing conducted by the assigned Judge.

(C) Experts shall not be employed by assigned counsel except by leave of court. Counsel shall file a motion for the appointment of an expert at least thirty (30) days before trial. Said motion shall set forth in detail the reasons for the need for such expert and the approximate expense that would be incurred if the motion were granted. The motion shall only be granted after a hearing conducted by the trial judge.

(D) Invoices for investigators and experts shall be filed with defense counsel's application for attorney's fees, on a separate sheet. Upon motion by counsel, experts or investigators may be paid prior to trial by the Court.

Interesting Decision on Granting New Trials from the Ninth District

The Ninth District Court of Appeals recently released an interesting decision. According to the dissent written by Judge Clair Dickinson, under the analysis set forth in the majority's decision, a trial judge is supposed to examine the record to see if "any competent, credible evidence" exists to support the jury's decision. If such evidence exists, then the jury verdict should be upheld, regardless of how the trial judge would weigh the evidence. According to Judge Dickinson, this decision conflicts with a decision released by the First District Court of Appeals. Under the analysis of the First District decision, it would appear that a trial judge would be allowed to consider the credibility of witnesses, under the Ninth District decision, according to Judge Dickinson, it would not.

[Cite as Griffith v. Veale, 2008-Ohio-5704.]

SHARON K. GRIFFITH, et al.
Appellants
v.
SHIRLEY C. VEALE
Appellee
C. A. No. 24036

APPEAL FROM JUDGMENT
ENTERED IN THE
COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
CASE No. CV 2005 12 7494

DECISION AND JOURNAL ENTRY

Dated: November 5, 2008

Per Curiam.

{¶1} Plaintiff Sharon K. Griffith has appealed from the order of the Summit County
Common Pleas Court denying her motion for a new trial. This Court affirms.
I
{¶2} Ms. Griffith was a passenger in a minivan driven by her husband when it collided
with a car driven by defendant Shirley C. Veale. According to her husband, son, and daughter,
Ms. Griffith lost consciousness immediately after the collision. She was conscious, however,
when emergency medical personnel arrived at the scene and complained to them about numbness in her left arm, as well as neck and back pain. At some point while she was being attended by the emergency medical personnel, she lost consciousness or fainted for approximately 30 seconds. The emergency medical personnel put a cervical collar on her and took her to Akron General Medical Center.

{¶3} At the hospital, Ms. Griffith again complained about numbness in her left arm.
She was admitted and spent four days in the hospital, complaining about fainting, back pain, leg
pain, and left arm numbness.

{¶4} Over the next 3½ years, Ms. Griffith was treated by a physiatrist, a chiropractor,
and a neurologist, as well as by her primary care physician, for conditions allegedly related to the
automobile collision. Those conditions included traumatic brain injury, an abrasion of the right
side of her scalp, weakness of the left shoulder and left hand, aggravation of a previous lumbar
spinal stenosis, and neck pain.

{¶5} Ms. Griffith and her husband sued Ms. Veale for Ms. Griffith’s alleged injuries
and her husband’s alleged loss of consortium. Ms. Veale conceded liability for any damages
caused by the collision. The jury before whom this matter was tried returned a verdict awarding
Ms. Griffith no damages, and she and her husband moved for a new trial under Rule 59(A)(6) of
the Ohio Rules of Civil Procedure, arguing that the jury’s verdict was against the manifest
weight of the evidence. The trial court denied their motion, and they have appealed to this Court.

II
Assignment of Error

“The Trial Court abused its discretion in denying Appellants’ Motion for New
Trial where Appellee’s and Appellants’ experts testified that Appellant sustained
injuries as a proximate result of Appellee’s negligence and where Appellants’
medical records also provided unrefuted evidence that she sustained injuries.”

{¶6} In their sole assignment of error, the Griffiths argue that the trial court incorrectly
denied their motion for a new trial. We disagree.

{¶7} “When an appellate court reviews the grant or denial of a motion for a new trial as
against the weight of the evidence, the appellate court does not directly review whether the
judgment was against the manifest weight of the evidence.” Brown v. Mariano, 9th Dist. No.
05CA008820, 2006-Ohio-6671, at ¶5 (quoting Snyder v. Singer, 9th Dist. No. 99CA0020, 2000
WL 631981, at *3 (May 17, 2000)). Rather, this Court “reviews the [trial] court’s decision on
that matter for an abuse of discretion.” Id. This Court recently described the trial court’s
function in determining whether to grant a motion for new trial based on the weight of the
evidence: A trial judge should “abstain from interfering with the verdict unless it is quite
clear that the jury has reached a seriously erroneous result.” “[I]t is the function
of the jury to assess the damages, and generally, it is not for a trial or appellate
court to substitute its judgment for that of the trier-of-fact.” “Where a verdict is
supported by competent substantial and apparently credible evidence, a motion
for new trial will be denied.”
Petryszak v. Greegor, 9th Dist. No. 07CA0076, 2008-Ohio-4776 at ¶8 (citations omitted).

{¶8} In denying Ms. Griffith’s motion for a new trial, the trial court wrote that “[t]he
sole question put to the jury was what, if any, of Plaintiff’s injuries were proximately caused by
Defendant’s negligence.” It noted that, although Ms. Veale “did not refute Plaintiff’s claim that
she suffered some injury as a result of the accident,” the jury was still entitled to completely
reject the Griffiths’ claim: “Negligence may occur without causing any personal injuries.”

{¶9} The trial court recited some of the evidence the Griffiths presented in support of
Ms. Griffith’s claimed injuries. It also noted, however, that, while a neurologist who testified on
behalf of Ms. Veale acknowledged that Ms. Griffith had “probably suffered some soft tissue
injury” in the collision, he “could find nothing at all with this lady objectively that [he] felt was
related to this accident.” It further noted that a psychologist who testified on behalf of Ms. Veale
opined that Ms. Griffith had “intentionally produced false or exaggerated symptoms—
exaggerating her head injury and the impact on her functional abilities.” The court pointed out
that, according to the defense psychologist, Ms. Griffith’s scores on tests administered to her
“were consistent with a severe dementia functioning level, which obviously put them in doubt.”

{¶10} The trial court also noted that, while Ms. Griffith claimed very limited ability to
use her left arm and hand, Ms. Veale presented a surveillance video that contradicted Ms.
Griffith’s claim. “It showed Plaintiff carrying packages, getting into the driver’s seat of a car
without any help, pulling her seat belt on, shutting the car door—all activities that she claimed
she could not do as a result of the injuries she received from the accident.”

{¶11} The trial court, in its opinion, concluded that “there was competent, credible
evidence presented to the jury which supports its finding that Plaintiff was not injured in the
accident.” Inasmuch as it supported that conclusion by reciting evidence in the record tending to
prove that Ms. Griffith’s claimed injuries were non-existent, this Court cannot conclude that it
abused its discretion by denying her motion for a new trial. Ms. Griffith’s assignment of error is
overruled.

III

{¶12} Ms. Griffith’s assignment of error is overruled. The judgment of the Summit
County Common Pleas Court is affirmed.

Judgment affirmed.

LYNN C. SLABY
FOR THE COURT
SLABY, P. J.
WHITMORE, J.
CONCUR
DICKINSON, J.
DISSENTS, SAYING:

{¶13} In State v. Wilson, 113 Ohio St. 3d 382, 2007-Ohio-2202, the Ohio Supreme
Court held that, if a trial court’s judgment in a civil case is “supported by some competent,
credible evidence going to all the essential elements of the case,” an appellate court is not
authorized to reverse the judgment “as being against the manifest weight of the evidence.” Id. at
¶24 (quoting C.E. Morris Co. v. Foley Constr. Co., 54 Ohio St. 2d 279, syllabus (1978)). In
other words, in determining whether a decision in a civil case is supported by the weight of the
evidence, an appellate court is not permitted to weigh the evidence. I have written elsewhere
about the problems I see with the decision in Wilson. Huntington Nat’l Bank v. Chappell, 9th
Dist. No. 06CA008979, 2007-Ohio-4344, at ¶17-75 (Dickinson, J., concurring).

{¶14} In ruling on Ms. Griffith’s motion for a new trial in this case, the trial court
applied the “competent, credible evidence” test adopted in Wilson. In affirming, the majority has
approved the trial court’s use of that test. Because I do not believe the Wilson decision should be
extended to prohibit trial judges from weighing the evidence when a party moves for a new trial
under Rule 59(A)(6) of the Ohio Rules of Civil Procedure, I would reverse and remand for the
trial court to weigh the evidence and determine whether the jury’s verdict was a manifest
injustice.

{¶15} In Rohde v. Farmer, 23 Ohio St. 2d 82 (1970), the Ohio Supreme Court
considered the test a trial judge should apply in determining whether to grant a motion for new
trial under then Section 2321.17(F) of the Ohio Revised Code, the statutory predecessor of Rule
59(A)(6). Section 2321.17(F) authorized a trial court to grant a new trial if a jury’s verdict was
“not sustained by sufficient evidence.” Rohde, 23 Ohio St. 2d at 90-91. Under Ohio law, at least
in criminal cases, the legal concepts of “sufficiency of the evidence” and “weight of the
evidence” are now “quantitatively and qualitatively different.” State v. Thompkins, 78 Ohio St.
3d 380, 386 (1997). As explained by Supreme Court in Rohde, however, the phrase “sufficient
evidence,” as used by the legislature in Section 2321.17(F), was synonymous with what we
would now term, at least in a criminal case, manifest weight: “[T]he language of R.C. §
2321.17(F), ‘sustained by sufficient evidence,’ does not mean merely sufficient evidence to
compel the submission of the case to the jury, but means sufficient, in the opinion of the trial
court, to conclude as a matter of fact that the judgment is not against the weight of the evidence.” Rohde, 23 Ohio St. 2d at 92. The Supreme Court further explained the test a trial judge should apply in determining whether the jury’s verdict is supported by the weight of the evidence: “[T]he trial court, in determining such question, must review the evidence and pass on the credibility of the witnesses; not in the substantially unlimited sense that such weight and
credibility is passed on originally by the jury, but in the more restricted sense of whether it
appears to the trial court that a manifest injustice has been done, and that the verdict is against
the manifest weight of the evidence.” Id. at 92.

{¶16} In Rohde, the Supreme Court also explained that, in considering the weight of the
evidence, a trial judge is required to exercise discretion: “A motion for a new trial with reference
to the weight or sufficiency of the evidence is addressed to the sound discretion of the trial court
and imposes upon that court a duty to review the evidence and pass upon the credibility of
witnesses.” Rohde, 23 Ohio St. 3d at 90 (quoting Berry v. Roy, 172 Ohio St. 422, 424 (1961)). It
further explained that, when a trial judge exercises his or her discretion and grants a new trial
based on the weight of the evidence, an appellate court, in determining whether the trial judge
has abused that discretion, should view the evidence most favorably to the judge’s action rather
than to the jury’s verdict: “This rule of appellate review is predicated, in part, upon the principle
that the discretion of the trial judge in granting a new trial on the weight of the evidence may be
supported by his having seen and heard the witnesses and having formed a doubt as to their
credibility, or having determined from the surrounding circumstances and atmosphere of the
trial, that the jury’s verdict resulted in manifest injustice.” Id. at 94 (citing Mooney v. Carter,
160 P.2d 390, 391 (Colo. 1945)).

{¶17} In Malone v. Courtyard by Marriott, 74 Ohio St. 3d 440 (1996), the Ohio
Supreme Court reviewed a case in which an appellate court reversed a trial judge’s grant of a
new trial under Rule 59(A)(6). The Supreme Court reiterated that an appellate court’s standard
of review when considering a trial judge’s ruling on a new trial based on the weight of the
evidence is abuse of discretion and again explained: “This deference to a trial court’s grant of a
new trial stems in part from the recognition that the trial judge is better situated than a reviewing court to pass on questions of witness credibility and the ‘surrounding circumstances and atmosphere of the trial.’” Id. at 448 (quoting Rohde, 23 Ohio St. 2d at 94). The Supreme Court concluded that the trial judge had not abused his discretion in granting a new trial in that case and that, therefore, the appellate court had incorrectly reversed the trial court’s order doing so: “A reasonable person confronted by such a set of facts could validly conclude that the jury’s verdict for [plaintiff] was against the manifest weight of the evidence.” Id. at 449.

{¶18} As I noted at the outset, in State v. Wilson, 113 Ohio St. 3d 382, 2007-Ohio-2202,
the Ohio Supreme Court held that, when an appellate court is itself asked to reverse a trial court’s judgment in a civil case based on the weight of the evidence, the appellate court is not permitted to weigh the evidence. In discussing what it termed the “civil manifest-weight-of-the-evidence standard,” the Supreme Court, in Wilson, among other things, wrote that an appellate court applying that standard “has an obligation to presume that the findings of the trier of fact are correct,” and explained that “[t]his presumption arises because the [trier of fact] had an
opportunity ‘to view the witnesses and observe their demeanor, gestures and voice inflections,
and use these observations in weighing the credibility of the proffered testimony.’” Id. at ¶24
(quoting Seasons Coal Co. Inc. v. Cleveland, 10 Ohio St. 3d 77, 80 (1984)). This is nearly
identical to the reason given by the Supreme Court in Malone and Rohde for the requirement that an appellate court, when reviewing a trial judge’s grant of a new trial based on the weight of the evidence, view the evidence most favorably to the trial judge’s action rather than to the jury’s original verdict. To the extent that the superior vantage point of the trier of fact is a ground for the Supreme Court’s holding in Wilson that an appellate court called upon to review the weight of the evidence in a civil case is not permitted to weigh the evidence, that ground does not apply when a trial judge is asked to grant a new trial under Rule 59(A)(6).

{¶19} In Malone, the Supreme Court noted that the purpose of an order for a new trial
under Rule 59(A)(6) “is to prevent ‘miscarriages of justice which sometimes occur at the hands
of juries,’ by presenting the same matter to a new jury.” Malone, 74 Ohio St. 3d at 448. Requiring a trial judge asked to grant a new trial under Rule 59(A)(6) to apply the “competent,
credible evidence” test, which, as the Supreme Court noted in Wilson, “tends to merge the
concepts of weight and sufficiency,” destroys the trial court’s ability to prevent such
“miscarriages of justice.” Wilson, 2007-Ohio-2202, at ¶26.

{¶20} I would not extend the holding in Wilson to require trial judges asked to grant a
new trial under Rule 59(A)(6) to apply the “competent, credible evidence” test, thereby requiring them to refrain from exercising their discretion by weighing the evidence that was before the jury. Rather, I would reiterate that the proper procedure for a trial judge called upon to consider a motion for new trial under Rule 59(A)(6) is the procedure described by the Supreme Court in Rohde: “[W]here there is a motion for a new trial upon the ground that the judgment is not sustained by [the weight of the] evidence, a duty devolves upon the trial court to review the evidence adduced during the trial and to itself pass upon the credibility of the witnesses and the evidence in general. It is true that, in the first instance, it is the function of the jury to weigh the evidence, and the court may not usurp this function, but, when the court is considering a motion for a new trial upon the [weight] of the evidence, it must then weigh the evidence. A court may not set aside a verdict upon the weight of the evidence upon a mere difference of opinion between the court and jury. . . . But, where a court finds a judgment on a verdict manifestly against the weight of the evidence, it is its duty to set it aside.” Rohde, 23 Ohio St. 2d at 92 (quoting Poske v. Mergl, 169 Ohio St. 70, 73-74 (1959) (internal citations omitted)).

{¶21} In Antal v. Olde Worlde Prods. Inc., 9 Ohio St. 3d 144, syllabus (1984), the
Supreme Court held that, when a trial court grants a motion for new trial based on the weight of
the evidence, it “must articulate the reasons for doing so in order to allow a reviewing court to
determine whether the trial court abused its discretion in ordering a new trial.” As noted by the
majority, the trial judge in this case filed a six page opinion explaining her denial of Ms.
Griffith’s motion for a new trial. Review of that opinion reveals that, rather than exercising her
discretion to weigh the evidence and determine whether the jury’s verdict was “manifestly
against the weight of the evidence,” she restricted her review to a determination that the jury’s
verdict was supported by “competent, credible evidence.” Accordingly, I would reverse the trial
court’s denial of Ms. Griffith’s motion for a new trial and remand for the trial judge to weigh the
evidence and determine whether the jury’s verdict was “manifestly against the weight of the
evidence.”

{¶22} I note that the majority’s approval of the trial judge’s use of the “competent,
credible evidence” test in this case conflicts with the decision of the First District Court of
Appeals in Green v. Bailey, 1st Dist. No. C-070221, 2008-Ohio-3569, at ¶12 (“In determining
whether a verdict is manifestly against the weight of the evidence as provided in Civ.R.
59(A)(6), ‘the [trial] court must review the evidence and pass on the credibility of the witnesses;
not in the substantially unlimited sense that such weight and credibility are passed on originally
by the jury, but in the more restricted sense of whether is appears to the trial court that a manifest injustice has been done, and that the verdict is against the manifest weight of the
evidence.’”)(quoting Rohde v. Farmer, 23 Ohio St. 2d 82, paragraph three of the syllabus) and
with the decision of the Second District Court of Appeals in Stephenson v. Upper Valley Family
Care Inc., 2d Dist. No. 07CA12, 2008-Ohio-2899, at ¶74 (“[T]he [trial] court must review the
evidence and pass in a limited way on the credibility of the witnesses.”). See App. R. 25.

APPEARANCES:
ROBERT J. VECCHIO, and ANTHONY J. VEGH, Attorneys a Law, for appellants.
DAVID G. UTLEY, Attorney at Law, for appellee.