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.