Ninth Appellate District Opinions from Summit County for 4/17-4/24/2013

The Court of Appeals for the Ninth Appellate District released seven decisions from Summit County during the week of April 17 through April 24, 2013. The decisions were as follows:

State v. Carano, 2013-Ohio-1633, issued on April 24, 2013, affirmed the conviction of the Mr. Carano for a felony offense of operating a motor vehicle while under the influence of alcohol. Mr. Carano alleged several assignments of error. He alleged error in the trial court's refusal of his motion for a mistrial; in denying his motion for suppression of evidence; in convicting him of the misdemeanor offenses of failure to stay within his lane of travel; in finding that there was sufficient evidence to try this case as a fourth degree felony; and in finding that there was sufficient evidence to convict him of driving while under the influence. The Court of Appeals rejected each assignment of error and affirmed the conviction. 

Katherine's Collection, Inc. v. Kleski, 2013-Ohio-1530, issued on April 17, 2013, dismissed the appeal on the grounds that the order was a not a final, appealable order. The Court of Appeals held that the order was not a final order and then it examined whether the appeal was a proper interlocutory appeal under R.C. 2505.02(B). The appellants had argued that the trial court's order could be reviewed under R.C. 2505.02(B)(4). After reviewing that subsection, the Court of Appeals concluded that the order was not reviewable and dismissed the appeal. 

State v. Wilson, 2013-Ohio-1529, issued on April 17, 2013 concerned whether the defendant had waived the assignment of error by not bringing the issue up after he was originally convicted. The issue concerned whether or not the trial court should have heard his motion to withdraw his guilty plea. By a 2-1 vote, the appellate court held that under Ninth District precedent the issue of withdrawal of a guilty plea should have been brought up following his original conviction. The dissent argued that since trial courts have discretion to hear post-conviction motions to withdraw guilty pleas, the trial court should have heard Mr. Wilson's motion. The dissent also argued that since the Ohio Supreme Court had issued two decisions after the trial court denied the motion that could have bearing on Mr. Wilson's motion, the appellate court should reverse and remand with instructions to consider the motion in light of the two Ohio Supreme Court decisions. 

Weisfeld v. PASCO, Inc., 2013-Ohio-1528 dealt with the issue of what should an appellate court do if a trial court incorrectly weight the evidence in deciding a motion for summary judgment? The majority found that the appellate court may consider examine the record to decide whether or not there was a material issue of fact independent of the trial court's findings of fact. If the appellate court determines that there was not a material issue of fact and that the non-moving party was entitled to judgment as a operation of law, it may go ahead and affirm the judgment. The dissent argued that once the appellate court determined that the trial court had inappropriately weighed the evidence, it should have reversed and remanded the case back to the trial court. 

State v. Mercer, 2013-Ohio-1527 issued April 17, 2013, concerned an appeal by a defendant who was convicted of rape and gross sexual imposition. The victim was a child who was 10 years old at the time of the incident and 11 years old at the time of the trial. Mr. Mercer raised four assignments of error on appeal They were that the trial court erred by failing to grant a mistrial based on the State's closing argument; that it erred by failing to comply with the requirements of R.C. 2945.481; that it erred by determining that the victim was competent to testify at trial; and that it erred by incorrectly imposing sentences on both offenses charged when they were allied offenses of similar import. 

The Court of Appeals held that all four assignments of error were not well taken. The assignment of error involving R.C. 2945.481 concerned whether that section, which allows a trial court to have a child victim testify in a separate room while the defendant watches via closed circuit television, was violated when the trial court used that procedure for a competency hearing. The section requires that certain procedures be followed when it is utilized. The defendant alleged that these procedures weren't followed. The Court of Appeals ruled that this section didn't apply because the child never actually testified at the competency hearing. The trial judge used the procedure to conduct a voir dire of the child witness. The Court of Appeals ruled that "by its plain language it was not implicated during the trial court’s voir dire of the victim during her competency hearing at which the child did not testify." Therefore the assignment or error was not well taken. 

State v. Hoyle, 2013-Ohio-1526 issued on April 17, 2013, concerned whether a trial court had to hear a motion from a defendant who was serving a sentence for murder. The motion concerned whether or not the sentencing entry complied with Crim. R. 32 and the Ohio Supreme Court decision of State v. Baker (2008), 119 Ohio St. 3d 197. The Court of Appeals found that the trial court did not err and affirmed the trial court's order denying the motion. 

State v. Arrunategui, 2013-Ohio-1525 issued on April 17, 2013, was a decision that reversed a trial court's order allowing a defendant to withdraw his guilty plea. The issue was whether the plea of guilty was knowingly entered when the defendant's counsel did not inform him that a conviction could result in deportation, but the trial court did so inform him, and whether the trial court should have held a hearing on the motion to withdraw. The State argued that the trial court advising the defendant of possible deportation overcame any issue with his counsel not advising him. The Court of Appeals stated that it wasn't making such a categorical decision, but rather, decided that the trial court should have held a hearing as opposed to just allowing the plea to be withdrawn by journal entry. 

Professionalism Best Practices Issued by Commission on Professionalism

PROFESSIONALISM 
IN THE COURTROOM 
Issued by the Commission on Professionalism: 

To be truly professional when appearing in court, a lawyer must act in a proper manner. 

Such conduct goes beyond complying with the specific rules of procedure and of evidence promulgated by the Supreme Court of Ohio and with local rules issued by trial courts and individual judges. Proper conduct in the courtroom also includes adhering to common principles of civility and respect when dealing with the judge, court staff, and opposing counsel. 

The Supreme Court of Ohio Commission on Professionalism has prepared this list of “dos and don’ts,” to illustrate a number of principles so that lawyers appearing in Ohio courts will fully understand what is expected of them. In creating this list, the Commission does not intend to regulate or to provide additional bases for discipline, but rather to help promote professionalism among Ohio’s lawyers. 

By following the principles of civility and respect, lawyers will enhance their professionalism, as well as the dignity of courtroom proceedings. 


DO 

• Be prepared for your participation in any court conference or proceeding. 
• Wear appropriate courtroom attire when appearing in court. If you are a male attorney, always wear a tie. 
• Advise your clients on how to dress appropriately for any scheduled court appearance. 
• Be on time for all court conferences and proceedings. (The best practice is to arrive at least five minutes in advance of the scheduled time.) 
• If you are going to be late, call the courtroom so those who are waiting are properly informed. 
• Turn your cell phone and all other electronic devices off or to silent mode before entering a courtroom. 
• Be courteous when addressing the judge and opposing counsel, both in the courtroom and in chambers. 
• Begin any argument on the record before the judge or jury, by saying, “May it please the court.” 
• Stand whenever you address the judge in the courtroom. 
• Show all exhibits to opposing counsel before showing the exhibit to a witness. 
• Ask the judge’s permission before approaching a witness during trial or before publishing an exhibit to the jury during an examination. 
• Speak clearly and enunciate when addressing the judge or a witness. 
• Agree to stipulate to facts that are not in dispute if they will not adversely affect your client. 
• Respect the private nature of a sidebar conference; avoid making statements or arguments at a level that may be overheard by the jury. 
• Inform the judge in advance of any delays in the scheduling of witnesses. 
• Treat court personnel with the same respect you would show the judge. 
• Be accurate when setting forth pertinent facts and pertinent rules of law. 
• Answer questions from the judge directly and forthrightly. 
• Bring to the judge’s attention any possible ethics issues as soon as you become aware of them. 
• Verify immediately the availability of necessary participants and witnesses after a date for a hearing or trial has been set, so you can promptly notify the judge of any problems. 
• During final argument, be circumspect when summarizing testimony that contains profane words. 

DON’T 

• Make ad hominen attacks on opposing counsel or be sarcastic in either your oral arguments or written briefs. 
• Shout when making an objection in a court proceeding. 
• Make any speaking objections in a jury case except for an explanatory single word or two (e.g., “hearsay,” “leading,” “no foundation”). DO request a side bar conference if you must expound on your objections. 
• Interrupt opposing counsel or the judge, no matter how strongly you disagree with what is being said. 
• Argue with the judge or react negatively after the judge has ruled on an objection or other matter. 
• Tell the judge that he or she has committed a reversible error. 
• Tell the judge that another judge has ruled a different way without providing a copy of the other judge’s written opinion. 
• Display anger in the courtroom. 
• Make facial objections during testimony or during arguments by opposing counsel. 
• Bring a beverage to the trial table unless it is in a non-descript glass or cup and only if you determined that the judge does not object to a beverage on the trial table. 
• Lean or sit on the trial table, jury box, or any other furniture in the courtroom. 
• Move freely around the courtroom once a proceeding is underway without obtaining permission from the judge. 
• Celebrate or denounce a verdict as it is delivered, and also advise clients and interested spectators not to do so. DO behave civilly with opposing counsel when leaving the courtroom. 
The Supreme Court of Ohio Commission on Professionalism 
The Supreme Court of Ohio • 65 South Front Street Columbus, Ohio 43215-3431 • supremecourt.ohio.gov • 614.387.9317 

Ninth District Appellate Opinions from Medina & Lorain Counties Released on 4/17-4/24/2013

The Court of Appeals for the Ninth Appellate District released 11 opinions from April 17 through April 24, 2013. One decision was for a Medina County appeal; three were for Lorain County appeals; and seven were for Summit County appeals. 

The Medina County decision was released on April 17, 2013. The case citation is Lexington Ridge Homeowners' Assn. v. Schlueter, 2013-Ohio-1601.  The  appeal involved a sale of a condominium unit by a home-owners' association and a mortgage that was held by Chase Home Finance LLC and Chase Bank USA, N.A. (Chase). The Association brought the foreclosure action to collect past due fees. The Association gave notice to Chase of the foreclosure since the judicial title report listed Chase as having a mortgage on the property. Chase did not make an appearance in the action. The Common Pleas Court signed a default judgment entry declaring that Chase had no interest in the property. Prior to the judgment entry being filed the case had been pending for almost two years. 

The decree of foreclosure was issued on July 7, 2010. On July 12, 2010, Chase filed a motion for leave to file an answer instanter. The Common Pleas Court denied that motion. Chase then filed an appeal to the Ninth Appellate District. Chase presented two assignments of error. 

The first assignment of error was that the decree of foreclosure exceeded the relief that was sought in the complaint and therefore failed to comply with Civ. R. 54(C). The second assignment of error was that the decree of foreclosure and judgment entry was against the manifest weight of the evidence. The Court of Appeals rejected both assignments of error and affirmed the trial court's judgment. 

The three Lorain County decisions were all issued on April 22, 2013. The decisions are as follows:

Spradlin v. Elyria, 2013-Ohio-1602 reversed a decision of the Lorain County Court of Common Pleas grating a Civ. R. 12 (B) (6) motion to dismiss for failure to state a claim. The case involved the death of a young boy who fell from steps overlooking a waterfall in a park in Elyria. Elyria filed the motion alleging that it was immune from liability because it was a governmental entity performing a governmental function. 

The Court of Appeals noted that in deciding a Civ. R. 12(B)(6) motion, a trial court has to assume that all of the factual allegations in the complaint are true. The Court of Appeals stated that the trial court apparently considered matters outside of the pleadings. Since this is not permitted, unless the trial court converts the motion to dismiss into a motion for summary judgment, the appellate court reversed and remanded the case for further proceedings. 

In re Adoption of A.H., 2013-Ohio-1600 affirmed a decision of the Lorain County Probate Court allowing the adoption of a child by the child's paternal grandparents. The paternal grandparents had raised the child since the child was less than a year old. R.C. 3107.07(A) provides that a parent’s consent to adoption is not required if it is alleged in the adoption petition and the court finds by clear and convincing evidence that: "the parent has failed without justifiable cause to provide more than de minimis contact with the minor or to provide for the maintenance and support of the minor as required by law or judicial decree for a period of at least one year immediately preceding either the filing of the adoption petition or the placement of the minor 
in the home of the petitioner."

Because R.C. 3107.07(A) is written in the disjunctive, either a failure to 
communicate or a failure to provide support for the one-year time period is sufficient to obviate the need for a parent’s consent. In this particular case the Probate Court made the finding that the mother, who was objecting to the adoption, had failed to provide more than de minimis contact. The mother argued on appeal that the appellate court should apply an abuse of discretion standard of review. The appellate court rejected that argument and held that in order to reverse the Probate Court's decision, the Court of Appeals would have to find that the Probate Court decision was against the manifest weight of the evidence. The Court of Appeals held that it could not make such a finding and affirmed the decision. 

BankUnited v. Klug, 2013-Ohio-1599 was an appeal by a bank from a decree of foreclosure that held that a woman's dower interest was one-third of the value of the property and that it was superior to the bank's mortgage. The Court of Appeals reversed on the first assignment of error and concluded that its decision on the first assignment of error meant that the second assignment of error was not ripe for adjudication. 

In its assignment of error the bank argued that application of the principles of equitable mortgage and equitable subrogation required the trial court to find that the bank's lien was superior to any dower interest. The Court of Appeals, however, found that the bank failed to show that there was an an absence of a factual issue, and  therefore the trial court was right to deny its motion for summary judgment. 

The Court of Appeals, however, then reviewed the trial court's granting of the woman's motion for summary judgment, It held that granting that motion was improper for the reason that she too had not shown an absent of a factual issue. Therefore the case was remanded back to the trial court for further proceedings. 

Ninth Appellate District Opinions for April 15, 2013

The Court of Appeals for the Ninth Appellate District released two opinions on Monday, April 15, 2013. The opinions were both civil cases. One was from Lorain County and the other was from Wayne County. 

The Lorain County decision was Hart v. Ridge Tool Co., 2013-Ohio-1487. Mr. Hart filed a worker's compensation claim based on depression and opiate dependence that followed an industrial injury. Ridge Tool is a self-insured employer under the Worker's Compensation Act. The two claims eventually came to the Lorain County Common Pleas Court. At some point the parties informed the Court that they had reached an agreement. The Lorain County Common Pleas Court then entered judgment on both claims, holding that Mr. Hart could no longer pursue his claims. 

Mr. Hart then filed a pro se appeal. Although the Court of Appeals conceded that his argument was not "easily discernible", Mr. Hart cited to R.C. 4123.65 (D), which, "regulates the settlement of workers’ compensation claims by providing for administrative review to protect parties against settlements that are ‘clearly unfair’ or that constitute ‘gross miscarriage[s] of justice." That section also applies to common pleas courts as well as the administrative bodies. See Gibson v. Meadow Gold Dairy, 88 Ohio St.3d 201, 202-203 (2000). 


When there is an settlement between a worker and a self-insured employee, R.C. 4123.65 (C) mandates that each party has 30 days from the date that the settlement is signed to withdrew from the settlement. In this case the trial court entered judgment before the 30 day period expired and there was no evidence that Mr. Hart had signed the settlement agreement. The Court of Appeals reversed and remanded for further proceedings. 

The Wayne County case, State v. Ross, 2013-Ohio-1488, was an appeal from the Wayne County Municipal Court which had convicted Mr. Ross of a marked lanes violation and a seatbelt violation. Originally Mr. Ross had also been charged with driving while under the influence, but those charges were dismissed and there was a bench trial on the remaining two violations. 

Mr. Ross argued on appeal that the evidence was insufficient to convict him of the marked lanes violation. The opinion contains a discussion of the Ninth Appellate District's analysis of the elements of R.C. 4511.33. In that opinion the following language appears:


"Accordingly, we continue to hold that, in order to establish a violation of R.C. 
4511.33, the State must present evidence “that the driver of a vehicle moving either between lanes of traffic or completely out of a lane of traffic failed to ascertain the safety of such movement prior to making the movement.” Barner, 2004-Ohio-5950, at ¶ 14. In the instant matter, the State failed to present any evidence of the foregoing." 

The opinion was a 2-1 decision, with Judge Whitmore dissenting. Both the majority opinion and the dissenting opinion discuss the application of the Ohio Supreme Court decision of State v. Mays, 119 Ohio St.3d 406, 2008-Ohio-4539. That decision involved the constitutionality of a stop based on an observed marked lanes violation, but Judge Whitmore argued that the language of the opinion supports the view that while there are circumstances that allow a motorist to go outside the marked lane of travel, being tired is not one of them. She then goes on to state that since that was the reason given by Mr. Ross for traveling outside of marked lanes, she would affirm the conviction. 

Subrogation Articles

Attorney David Matejczyk has two articles on Ohio subrogation law which he has posted on his firm's website. One article concerns differences between an employee and an independent contractor under Ohio law. The other article concerns Ohio parental liability subrogation issues. You may read the articles by clicking on this link. 

If you know of any articles that you think would be of interest to Ohio attorneys, please forward them to judgejameskimbler@yahoo.com. 

Ohio Supreme Court Decision on Criminal Discovery

The Ohio Supreme Court released a decision on March 21, 2013, that deals with the issue of what sanctions should be used by a trial court if the State doesn't comply with the discovery rules. The decision, State v. Darmond, Slip Opinion No. 2013-Ohio-966, rose out of the decision of a trial court in Cuyahoga County. 

During the trial it became obvious that the State had failed to disclose "some evidence related to the case." The Supreme Court opinion, by Justice William O'Neill, states that the discovery violation was unintentional. The trial court, upon motion by the defense, granted a mistrial and the Eighth Appellate District affirmed. 

The Ohio Supreme Court reversed. The opinion syllabus states the following:


The holding in Lakewood v. Papadelis, 32 Ohio St.3d 1, 511 N.E.2d 1138 (1987), paragraph two of the syllabus, that “[a] trial court must inquire into 
circumstances surrounding a discovery rule violation and, when deciding 
whether to impose a sanction, must impose the least severe sanction that is 
consistent with the purpose of the rules of discovery” applies equally to 
discovery violations committed by the state and to discovery violations 
committed by a criminal defendant."

Justice O'Neill's opinion contains a analysis of prior Ohio Supreme Court decisions concerning discovery violations, particularly by the State, and how they have been dealt with by the Court. His opinion then contains a analysis on whether or not the trial judge's granting of the motion to dismiss was an abuse of discretion. The decision concludes that granting the motion to dismiss was an abuse of discretion. 

The following quote appears in P41 of the decision:


"Based upon the above analysis, we conclude that the trial court abused its discretion. We emphasize that we do not hold that a discovery violation committed by the state can never result in the dismissal with prejudice of a criminal case. That option remains available when a trial court, after considering the factors set forth in Parson and in Lakewood, determines that a lesser sanction would not be consistent with the purposes of the criminal discovery rules."

Ninth Appellate District Opinions Released 4.10.2013

The Court of Appeals for the Ninth District released four opinions on Wednesday, April 10. All the opinions were from Summit County. My summaries of the opinions appear below. As always any mistake made in the summaries is solely my responsibility. 

State v. Caldwell, 2013-Ohio-1417, which concerned a criminal appeal from the Summit County Common Pleas Court. Mr. Caldwell assigned five grounds for error, including the admission of hearsay statements and ineffective assistance of counsel. The Court of Appeals first noted that only a few of the alleged hearsay statements were objected to at the time of the trial. The Court of Appeals noted that unless the admission of such statements amounted to plain error, failure to make objections at the time of the trial waived those objections. The Court of Appeals found that if one of the statements was inadmissible, it was harmless error and it found that the other statement was properly admitted. 

The Court of Appeals then considered the ineffective assistance of counsel argument. The Court noted that failure to object to hearsay evidence does not amount to ineffective assistance of counsel, citing to opinions from the Ohio Supreme Court. Mr. Caldwell also argued that his counsel was ineffective because she left a police officer on the jury. The Court of Appeals noted that when that juror was called, the defense had no more peremptory challenges and that there was no reason to successfully challenge for cause. The Court overruled that assignment of error. 

Mr. Caldwell also argued that the trial court should have held a hearing on his motion for a new trial. The Court of Appeals noted that the trial court incorrectly concluded that the issue of ineffectiveness of counsel could not be raised on a motion for a new trial, but also concluded that the error did not prejudice Mr. Caldwell. 

The other two assignments of error were that Mr. Caldwell's conviction was against the manifest weight of the evidence, which the Court rejected. He also argued that the trial court deprived him of confrontation by admitting hearsay statements from co-defendants. The Court of Appeals noted that there was not an objection made at the time of the trial and that Mr. Caldwell had not argued plain error in his initial argument, but only in his reply brief, which is not allowed. The conviction was affirmed. 

Melick v. Melick, 2013-Ohio-1418 was an appeal from the Summit County Domestic Relations Court. The Court of Appeals affirmed the decisions of that court. The opinion carries an interesting discussion of the law regarding the disqualification of a magistrate for alleged bias. The opinion also contains discussion on assignments of error concerning child support and the use of the child support calculation tables. 

Akron City Sch. Dist. Bd. of Edn. v. Summit Cty. Bd. of Revision, 2013-Ohio-1419 deals with issues raised by an appeal from a decision of the Summit County Board of Tax Appeals. The Appellant was a long term lessee of the property involved in the case. The Board ruled that the appellant did not have standing to challenge the assessment. The Court of Appeals affirmed that decision. The Court noted that there is both statutory law and case law that the only a landowner has standing to bring a challenge to the valuation of property for tax purposes. The other assignment of error was rendered moot by the appellant's lack of standing. 

Solomon v. Marc Glassman, Inc., 2013-Ohio-1420 was an appeal from a decision by the Summit County Common Pleas Court granting a motion for summary judgment. The summary judgment was granted to Marc's in a lawsuit brought by a customer who was injured while shopping. The injury occurred when a shopping cart lost a wheel and tipped over. The appellant alleged that she was an invitee and that Marc's had a duty to inspect its shopping carts to make sure that were working properly. Marc's agreed with the appellant that it had such a duty. The Court of Appeals held that there was a question of fact concerning whether that duty was violated and reversed and remanded the case. 

Eighth District Case on Emotional Distress & Summary Judgments

The Court of Appeals for the Eighth Appellate District released an opinion on April 4, 2013, involving an appeal from the granting of a motion for summary judgment. The case, Lively v. Donald Dunning, D.D.S., Inc., 2013-Ohio-1350, involved an ex-employee, and former step-daughter, suing her former employer. The employer had reported to the police that she had embezzled money from their accounts. The report was made after she resigned her position. The police report led to an indictment, but the judge in the criminal case, found her not guilty. 

She then sued for malicious prosecution and for intentional infliction of emotional distress. The defendant responded by arguing that the grand jury indictment created a presumption that there was probable cause for the indictment and therefore no liability for malicious prosecution. 

The Court of Appeals reversed. The Court noted that the presumption of probable cause from the issuing of the indictment was a rebuttable presumption. In this particular case, the appellate court noted that record showed the existence of facts from which a circumstantial case could be made for the rebutting of the presumption. 

On the intentional infliction of emotional distress claim the Court noted that  reporting a crime to a police agency and assisting in the investigation is not the type of outrageous conduct that leads to intentional infliction of emotional distress. The Court also noted, however, that the circumstances of this particular case were such that the Court could not say as a matter of law that the conduct of the employer was not outrageous. Therefore the summary judgment on that claim was also reversed. 

TV Ad on Juror Conduct Show

Click on the link below to see a television ad sponsored by the Celebrezze-Zanghi Community Legal Education Project promoting a video clip by Judge James L. Kimbler on what to expect if you are called for jury duty. 

Ninth District Court of Appeals Opinions Released on 4.3.2013

The Court of Appeals for the Ninth Appellate District released two opinions on April 3, 2013. Both opinions were authored by Judge Jennifer Hensal, who joined the Court this past January. The opinions were for cases heard by the Summit County Common Pleas Court. The opinions were:

Wilcox v. Tabler, 2013-Ohio-1321, which reversed the trial court's granting of a motion for summary judgment. The plaintiff/appellant was a tenant living in a rented house. She slipped on water in the home's basement while she was doing laundry. She alleged that the defendant/appellee was negligent and that he violated duties created by the Ohio Revised Code and the Codified Ordinances of the City of Akron.

The Court of Appeals found that the trial court erred in requiring that the plaintiff/appellant had to produce evidence of a citation or expert witness testimony to establish there was a Code violation. The Court of Appeals essentially found that the circumstantial evidence in the record established an issue of fact regarding the Code violation.

State v. Sauto, 2013-Ohio-1320, which affirmed the defendant/appellant's conviction for unlawful sexual conduct with a minor. The appellant alleged that the trial court erred in allowing the State to amend the indictment alleging that the conduct took part during a 19 day period and not on a single day. The Court of Appeals noted that the amendment did not change the nature or identity of the offense and therefore held that there was no error.

The appellant also alleged that the trial court erred in not giving her a continuance after allowing the State to amend the indictment and in not granting a mistrial. The Court of Appeals rejected both of these assignments of error.  

Ninth District Domestic Relations Opinion Certified as Conflict

On January 23, 2013, the Ohio Supreme Court entered the following order:

"On review of order certifying a conflict. The court determines that a conflict exists. The parties are to brief the issue stated at page 1 of the court of appeals' entry filed November 5, 2012:

"Whether company benefits, such as a company car, can be included as income for the purpose of child support calculations if the benefits the party receives do not come from self-employment, as proprietor of a business, or as a joint owner of a partnership or closely held corporation."

The conflict case is Spier v. Spier, 7th Dist. No. 05 MA 26, 2006 Ohio 1289.

Sua sponte, cause consolidated with 2012-1674, Morrow v. Becker, Medina App. No. 11CA0066-M, 2012 Ohio 3875."

The Ninth District held that such benefits could be included as income for purposes of child support calculations. 

Ohio Supreme Court Certifications of Conflict for February of 2013

February 6, 2013

"On review of order certifying a conflict. The court determines that a conflict exists. The parties are to brief the issue stated at page 3 of the court of appeals' entry filed December 13, 2012:

"If a court commits a child to a secure facility, does R.C. 2152.83(B)(1) permit the court to conduct a classification hearing at the time of disposition?"

O'Donnell , J., dissents.

The conflict case is In re B.G., 5th Dist. No. 2011-COA-012, 2011 Ohio 5898.

In re I.A., 134 Ohio St. 3d 1447 (Ohio 2013)"

February 20, 2013

"On review of order certifying a conflict. The court determines that a conflict exists. The parties are to brief the issue stated at page 2 of the court of appeals' entry filed December 17, 2012:

"A defendant [may] benefit from a decrease in a classification and penalty of an offense by the General Assembly [that becomes effective] between the time the defendant committed the offense and the time of his sentencing on that offense[.]"

The conflict cases are State v. Gillespie, 5th Dist. No. 2012-CA-6, 2012 Ohio 3485, 975 N.E.2d 492, and State v. David, 5th Dist. No. 11-CA-110, 2012 Ohio 3984.

O'Donnell , J., dissents.

O'Connor , C.J., not participating.

State v. Taylor, 134 Ohio St. 3d 1466 (Ohio 2013)"

February 20, 2013

"On review of order certifying a conflict. The court determines that a conflict exists. The parties are to brief the issue stated at page 3 of the court of appeals' entry filed October 23, 2012:

"Is R.C. 2905.05(A) unconstitutionally overbroad?"

The conflict case is State v. Clark, 1st Dist. No. C-040329, 2005 Ohio 1324.

Cause consolidated with 2012-2042, State v. Romage, Franklin App. No. 11AP-822, 2012 Ohio 3381, 974 N.E.2d 120.

State v. Romage, 134 Ohio St. 3d 1465 (Ohio 2013)"

Ninth Appellate District Decisions Released on 3.29.2013

The Ninth District Court of Appeals released 12 opinions on Friday, March 29, 2013. There were two decisions from Medina County appeals, five decisions from Lorain County appeals, and five decisions from Summit County appeals.

The decisions released from Medina County appeals were:

State v. Evans, 2013-Ohio-1216, which involved a petition for post-conviction relief. Mr. Evans appealed from a denial of his petition for post-conviction relief by the trial court. In his petition he claimed that his trial counsel was ineffective in failing to call a witness, in failing to use information to impeach the State's witnesses, and in failing to inform him of plea negotiations. At a hearing scheduled on his petition, Mr. Evans failed to produce witnesses that he claimed would support his allegations. The trial court overruled his petition for post-conviction relief. The Court of Appeals applied an abuse of discretion standard to the appeal and affirmed the trial court's ruling.

State v. Schmolz, 2013-Ohio-1220, which involved the issue of whether the trial court erred by allowing the State to amend the indictment during trial. The indictment charged Ms. Schmolz with receiving stolen property. The property was described as a "license plate". During trial the State established that the property was a "temporary license placard". Both kinds of property are covered by R.C. 2913.71(C), which makes theft offenses involving such property felonies of the fifth degree. The Court of Appeals found that the amendment did not change the identity of the offense, which was receiving stolen property, nor the penalty, since theft offenses involving both "license plates" and "temporary license placards" are fifth degree felonies. Therefore the Court of Appeals affirmed Ms. Schmolz's conviction.

The decisions released from Lorain County appeals were:

Billi v. Moyse-Morgan Ents. Inc., 2013-Ohio-1214, which involved an appeal from the granting of a motion for summary judgment. The Plaintiff, who was the appellant, alleged two claims of negligence against the Defendants, who were owners and employees of a bar. The first claim was for negligence and the second was for a violation of Ohio's Dram Shop Act. The Court of Appeals affirmed the trial court's granting of the motion for summary judgment on the negligence claim, but reversed the trial court's granting of the summary judgment motion on the Dram Shop Act claim.

Gargasz v. Lorain Cty., 2013-Ohio-1218, concerned an appeal from a declaratory judgment. The Court of Appeals reversed the trial court finding that the trial court's judgment entry did not declare the "rights and responsibilities of the parties". Since the trial court's entry did not make such declarations, the judgment was not a final and appealable order. The trial court's judgment entry was an entry that stated that it was granting the Defendants' motion for summary judgment and denying the Plaintiffs' motion for summary judgment. The Court of Appeals held that such an entry did not comply with R.C. R.C. 2721.02(A) which expressly provides that a “declaration has the effect of a final judgment or decree[]” and that a declaration is “either affirmative or negative in form[.]”

Strickler v. First Ohio Banc & Lending, Inc.,2013-Ohio-1221, which was an interlocutory appeal from an order by the Lorain County Common Pleas Court granting class certification. The Court of Appeals affirmed the class certification made by the Lorain County Common Pleas Court. The class action is based on allegations that First Ohio had failed to provide buyers with disclosure statements that complied with R.C. 1322.062. The class action is directed at First Banc and at the sureties who had issued mortgage broker bonds to First Ohio and its employees. The decision contains a discussion on what the role of a trial court is in determining whether to grant class certification.

Young v. Conry, 2013-Ohio-1223 which was an appeal from a decision of the Lorain County Probate Court granting summary judgment to the defendants in a will contest case. The appellants argued that the Probate Court abused its discretion by enforcing a discovery cut-off date and by granting the summary judgment motion. The Court of Appeals affirmed the actions of the Probate Court regarding both allegations of error.

State v. Zepeda-Ramires, 2013-Ohio-1224 which was an appeal from an order of the Lorain County Common Pleas Court requiring payment of a forfeited bond issued by a bonding company in a criminal case. The Court of Appeals noted that the appellants were objecting to what the appellants called the trial court's failure to comply with the statutory requirements for bond forfeiture. The Court of Appeals also noted that the appellants failed to attend hearings that were scheduled on the State's motion to revoke bond and declare the bond forfeited. Since the appellants could have raised these issues at those hearings, the Court of Appeals considered those issues were forfeited on appeal. If an appellate issue is forfeited, then the Court of Appeals can only review under a "plain error" standard, but, in this case, the appellants did not allege "plain error." Therefore the trial court was affirmed.

The decisions released from Summit County were:

Akron v. State Emp. Relations Bd., 2013-Ohio-1213, which was an appeal from a decision of the Summit County Court of Common Pleas that the City of Akron engaged in an unfair labor practice in its dealings with the Fraternal Order of Police during labor negotiations. The Order represents Akron's police officers. Originally the allegation was heard by the State Employment Relation Board, S.E.R.B., which found that the City had engaged in an unfair labor practice. The Common Pleas Court affirmed the order of the S.E.R.B. on an administrative appeal. The Court of Appeals affirmed the Common Pleas Court.

State v. Castagnola, 2013-Ohio-1215, was an appeal from Mr. Castagnola's convictions for multiple offenses in two separate cases. The offenses were described as "criminal damaging, vandalism, criminal trespass, possession of criminal tools, two counts of retaliation, and multiple forfeiture specifications" in one case and "pandering sexually oriented matter involving a minor" in the other case. He was convicted by a jury in the first case and by the trial court in the second case. On appeal he alleged error by the trial court in not suppressing a search and seizure of his computer, by convicting him of the pandering charge on insufficient evidence, by not merging offense, and by imposing consecutive sentences without making required findings. The Court of Appeals affirmed the trial court on the first two assignments of error, reversed and remanded on the merger issue, and, because his sentence may change following the merger, did not address the assignment of error involving the consecutive sentences.

Flaughers v. Thomas, 2013-Ohio-1217 reversed a decision of the Summit County Probate Court that entered a judgment in favor of the defendants/appellees following a jury trial. The issue on appeal involved whether the trial court erred by not granting a motion for summary judgment filed by the plaintiff-appellant. The appellant argued that the United States Bankruptcy Court had determined that the appellees had embezzled assets from the decedent's estate. The appellant had been appointed the administrator of the estate. The Court of Appeals found that the issue of whether the appellees had embezzled or concealed the estate's assets had been determined by the Bankruptcy Court and that determination was res judicata on the Probate Court. The Court of Appeals held that while the issue of liability had been determined, the issue of damages was not reached by the Bankruptcy Court. It remanded the case to the Probate Court for a determination on that issue.

State v. Lamp, 2013-Ohio-1219 reversed a decision of the Summit County Common Pleas Court which had granted the defendant's motion to dismiss the case on grounds of double jeopardy. Mr. Lamp had been charged with breaking and entering in the Common Pleas Court, a fifth degree felony, and with theft in a municipal court, a first degree misdemeanor. After pleading guilty to the theft charge, he filed the motion for dismissal on double jeopardy grounds. The trial court granted the motion, but the Court of Appeals reversed. The appellate court found that when determining whether there is a double jeopardy violation for successive prosecutions, the trial court must examine the elements of each offense. In this case the trial court did not conduct an examination of the elements of each offense, but focused on whether there was a merger of the two offenses. The Court of Appeals reversed and remanded so that the trial court could conduct an examination of the elements to determine if either statute required proof of a fact that the other statute did not require.

Rivers v. Cashland, 2013-Ohio-1225 was an appeal from a decision of the Summit County Court of Common Pleas granting summary judgment on several claims raised by the plaintiff-appellant. The claims included disability discrimination, racial discrimination, sexual discrimination, retaliatory discharge for filing a worker's compensation claim, retaliation for making a discrimination complaint, negligent supervision and training, and intentional infliction of emotional distress. The Court of Appeals reversed the trial court on the claims regarding disability discrimination, racial discrimination, sexual discrimination, retaliatory discharge for filing a worker's compensation claim, and negligent supervision and training. It affirmed the trial court on the granting of summary judgment on the issues of retaliation for making a discrimination claim and for intentional infliction of emotional distress. The case was then remanded for further proceedings.