Ninth District Court of Appeals Opinions for 3.27.2013

The Court of Appeals for the Ninth Appellate District released eight opinions on March 27, 2013. The opinions were as  follows:

State v. Austin, 2013-Ohio-1159, which was a criminal case out of Summit County. Austin listed three assignments of error. The Court affirmed on the first two assignments of error, but reversed and remanded on the third.

The Court held that the trial court did not consider whether the two offenses that Austin were sentenced on were allied offenses of similar import under a "merger" theory.

In its opinion by Judge Whitmore, the Court wrote the following:

"The record does not support the conclusion that the trial court considered and applied Johnson when it sentenced Austin. Neither the court, nor the parties ever discussed Johnson or the issue of merger. Were this Court to apply Johnson to Austin’s breaking and entering and vandalism convictions, we would be doing so in the first instance. This Court has consistently declined to do so. See, e.g., State v. Chisholm, 9th Dist. No. 26007, 2012-Ohio-3932, ¶ 22. The State here has acknowledged that the trial court did not consider Johnson and has requested that this Court remand the matter. We agree that a remand is appropriate, given our prior decisions. Therefore, this matter must be remanded to the trial court for it to apply Johnson and determine whether Austin’s offenses should merge. “Moreover, in the event that the offenses are allied, ‘the State also must have the opportunity to elect the offense[] upon which it wishes to proceed to sentencing.’” Asefi at ¶ 8, quoting State v. Ziemba, 9th Dist. No. 25886, 2012-Ohio-1717, ¶ 23. Austin’s third assignment of error is sustained solely on the basis that this matter must be remanded, consistent with the foregoing discussion."

Harper v. Chaney, 2013-Ohio-1160, which was a civil case out of Summit County. The assignment of error was:

The Court held that there was a genuine issue of material fact as to whether the danger confronted by the plaintiff was "open and obvious" and therefore held that summary judgment was improper.

The Court explained its ruling this way:

"Viewing the evidence in a light most favorable to Ms. Harper, the non-moving party, we conclude that the totality of the circumstances give rise to a question of fact regarding whether Ms. Harper would have been able to observe the step had she been looking down at the basement floor on the day of her accident. See Zambo at ¶ 9. Specifically, there was evidence of

some daylight streaming in from a basement window, which may or may not have been partially obstructed by a curtain. Further, there was evidence of sufficient lighting to descend the basement stairs, but insufficient lighting in the area beyond the basement stairs where this seemingly random step was located. While the trier of fact may ultimately find that, under these

lighting conditions, Ms. Harper was reasonably expected to discover the step and avoid the hazard, we believe that such a factual determination must be resolved in Ms. Harper’s favor at this stage of the proceedings. Accordingly, this Court concludes that a genuine issue of material fact exists as to whether, under the existing lighting conditions, the step posed an open and

obvious danger. See Marock v. Barberton Liedertafel, 9th Dist. No. 23111, 2006-Ohio-5423, ¶ 19."

State ex rel. Longville v. Akron, 2013-Ohio-1161, was a civil case out of Summit County which listed three assignments of error by the appellant and one assignment of error by the appellee.  Only one of the assignments was ruled upon and the Court reversed on that assignment. The Court of Appeals wrote the following concerning the assignment of error that it reversed on:

"In its first assignment of error, the City of Akron argues that the trial court erred in granting Ms. Longville’s motion for summary judgment because it improperly converted Ms. Longville’s request for declaratory judgment and injunction into a mandamus action, where Ms. Longville did not properly plead the elements of a mandamus action in her complaint. For the

reasons set forth below, we agree that the trial court erred."

Because it reversed on that assignment of error, it held that it did not have to reach the other assignments of error at this time.

Statev. Papczun, 2013-Ohio-1162 was a criminal case out of Summit County. The Court dismissed the appeal for a lack of a final appealable order.  In the following paragraph, the Court explained its ruling:

"In State v. Keith, 9th Dist. No. 08CA009362, 2009-Ohio-76, this Court concluded that the calculation of jail-time credit must be included in the sentencing order and that, “in order to challenge the trial court’s calculation of jail time credit, an appellant must appeal from the trial court’s entry imposing sentencing.” Id. at ¶ 8. We reasoned that an appeal from an order that denies a motion to revisit the issue of jail time credit is, essentially, an appeal from an order denying reconsideration of the sentencing order. Id. Because “[a] motion for reconsideration of a final judgment is a nullity * * * and ‘a judgment entered on a motion for reconsideration is a

nullity,’” this Court concluded that an order that denies a motion for jail time credit is not final and appealable. Id., quoting State v. Harbert, 9th Dist. No. 20955, 2002-Ohio-6114, ¶ 24-25."

State v. Porter, 2013-Ohio-1163 was another decision where the Court of Appeals concluded that the appeal was defective and therefore it did not have to address the merits of the appeal. Porter, who was convicted in the Summit County Common Pleas Court, was appealing from the dismissal of his petition for post-conviction relief. In the opinion the Court wrote the following:

"A trial court may not entertain an untimely petition for post-conviction relief

unless the petitioner shows that: (1) either he or she “was unavoidably prevented from discovery of the facts upon which the petitioner must rely to present the claim for relief, or, [after the filing deadline], the United States Supreme Court recognized a new federal or state right that applies

retroactively to persons in the petitioner’s situation, and that the petition asserts a claim based on that right”; and (2) the petitioner shows that but for the constitutional error at trial, no reasonable fact-finder would have found petitioner guilty. R.C. 2953.23(A)(1)(a)-(b). Porter has made no

argument that any of these conditions apply."

Since Porter did not file a timely petition for relief, the trial court was not required to entertain the petition and the Court of Appeals affirmed the trial court's dismissal.

Thomas v. Bauschlinger, 2013-Ohio-1164, was an appeal from a decision of the Summit County Common Pleas Court dealing with several issues. The Court affirmed in part and reversed and remanded in part. The appellants, who were acting pro se, sued several officials of the City of Barberton. The lawsuit involved actions taken by the City administration and the City Police Department. The Court of Appeals affirmed the dismissal of the lawsuit with respect to members of the Police Department, the Mayor, and the City Prosecutor. The Court, however, reversed regarding the allegations made against the City's Building Inspector.

The Court explained its ruling in this paragraph:

"Here, again taking as true the facts as alleged in the complaint, the Building

Department condemned the property without an interior inspection or any further justification. Without notice to the Thomases and without providing them an opportunity to collect their personal belongings, the City demolished the property, destroying their belongings. In their prayer for relief, the Thomases maintained that they lost the use of their real and personal property due to the “willful[ ]and wanton acts” of the Appellees. Taking as true the allegations of the complaint, we cannot say that there exists no set of facts by which the Thomases could establish that [the Building inspector] acted manifestly outside the scope of his employment or with “malicious purpose, in bad faith, or in a wanton or reckless manner.” See LaSalle Bank at ¶ 19; R.C. 2744.03(A)(6)(b). Therefore, the claims against him should not have been dismissed under Civ.R. 12(b)(6). Accordingly, to the extent that the Thomases argue that the trial court erred in dismissing their claims against [the Building Inspector] on the basis of his purported political subdivision employee immunity, their assignments of error are sustained."

Young v. Young, 2013-Ohio-1165, was an appeal from a decision of the Summit County Court of Domestic Relations regarding allocation of parenting time. The Court of Appeals dismissed the appeal because the issues raised in the appeal became moot when the child who was the subject of the parenting time order turned 18. The Court explained its ruling this way:

"Once K.Y. turned 18, she ceased to be a child/minor. The domestic relations court lacks authority to order an adult to engage in companionship time with her parent. Even if the court erred by dismissing the proceedings, the remedy Father seeks is no longer available due to K.Y.’s having turned 18. Therefore, Father’s appeal is moot. See In re Wyatt, 3d Dist. No. 5-07-

45, 2008-Ohio-2115, ¶ 9; Dahmen v. Dahmen, 11th Dist. No. 2007-T-0037, 2008-Ohio-2129, ¶ 7-9; Matter of Miller, 5th Dist. No. 97-COA-01223, 1998 WL 429830, *1-2 (July 9, 1998)."

Vanderbilt v. Vanderbilt, 2013-Ohio-1222 is an appeal from the Medina County Court of Domestic Relations. Both the husband and the wife appealed from the trial court's order. The wife's appeal resulted in the Court of Appeals affirming the trial court, but the husband's appeal resulted in the Court reversing the trial court's order regarding the issue of spousal support.

The husband argued that the trial court erred by not conducting an analysis of whether a pre-nuptial agreement that concerned spousal support had

terms that were unconscionable as of the time of the divorce.

The Court set forth its reasoning in this quote from the opinion:

"The question for the trial court is not whether the spousal support terms of a prenuptial agreement are fair, but whether they are unconscionable when viewed at the time of the divorce. The burden of this demonstration is on the party alleging the unconscionability. Gross at 109-110."