Ninth District Opinions for May 22, 2013

The Court of Appeals for the Ninth Appellate District released six opinions for cases that were appeals from Summit County on May 22, 2013. The cases are:

State v. Wingate, 2013-Ohio-2079 affirmed the conviction of Wingate by the Summit County Common Pleas Court. Wingate had appealed arguing that her conviction was against the manifest weight of the evidence; that the trial court should have granted her Crim. R. 29 motion for directed verdict; that the trial court impermissibly commented on the veracity of one of the witnesses when sustaining an objection during closing argument; and that the prosecutor had made improper remarks during the State's closing argument. The Court of Appeals overruled all of Wingate's assignments of error. 

State v. Thomas, 2013-Ohio-2078 reversed and remanded a decision from the Summit County Common Pleas Court that had denied his motion to vacate post-release control. The Common Pleas Court had imposed an indefinite period of post-release control instead of the mandatory five year period. The Court of Appeals held that under State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, a defendant may raise the issue of improper imposition of post-release control at any time and that the trial court should have vacated the post-release control even though Thomas had served his prison sentence. 

State v. McIntyre, 2013-Ohio-2077 affirmed a decision from the Summit County Common Pleas Court that denied nine motions that McIntyre had filed following his conviction. The Court of Appeals noted that McIntyre had filed "countless motions and numerous appeals" in affirming the trial court's ruling on the nine motions. 

Green v. Helms, 2013-Ohio-2075 affirmed a decision from the Summit County Common Pleas Court that had granted the City of Green's motion for summary judgment. The trial court found that Helms' outdoor storage of business materials was prohibited by the city's zoning code. By a 2-1 decision the Court of Appeals agreed with the trial court. 

Ninth District Opinions for May 20, 2013

The Court of Appeals for the Ninth Appellate District released the following opinions on May 20, 2013:

State v. Taylor, 2013-Ohio-2035 reversed a decision from the Oberlin Municipal Court that found lack of physical control to be a lesser included of driving while under the influence. The appellate court found that a person can commit the offense of driving while under the influence in violation of R.C. 4511.19 without being in a motor vehicle, but could not commit the offense of lack of physical control in violation of R.C. 4511.194 unless they were in a motor vehicle. Therefore an R.C. 4511.194 offense is not a lesser included of a R.C. 4511.19 offense. 

Kick v. Smithville W. Care Ctr., 2013-Ohio-2034 reversed a decision from the Wayne County Court of Common Pleas that had enforced an arbitration agreement between a nursing home and one of its patients. The trial court had also stayed proceedings. The reason for the reversal and remand was because the trial court had not considered issues raised by the estate of the patient. These issues included whether an arbitration agreement between the nursing home and the patient terminated on the parient's death and whether the arbitration agreement bound the patient's personal representative in a wrongful death case. The trial court was instructed to consider the issues raised by the appellant. 

Hadcock Properties, Inc. v. Mesar, 2013-Ohio-2033 reversed and remanded a decision from the Medina County Common Pleas Court that had held that attorney fees shouldn't be awarded pursuant to a lease. The lease had been drafted by Hadcock Properties. The lease was for five years, but wasn't acknowledged by the lessee. 

The trial court found that the equitable doctrine of partial performance took the lease out of the Statute of Conveyances, but that since the doctrine of part performance is a equitable doctrine and since the landlord had drafted the lease, it wasn't equitable to enforce the clause regarding payment of attorney fees. 

The Court of Appeals disagreed. It held that once the doctrine of part performance was applied, the whole lease was valid and the trial court should have enforced the attorney fees provision. The case was remanded with instructions to award attorney fees as claimed by the landlord. 

Ninth District Opinions from May 15, 2013

The Court of Appeals for the Ninth District Court of Appeals released the following opinions on May 15, 2013:

In re A.S., 2013-Ohio-1975 was a decision released from the Summit County Juvenile Court reversing a decision that awarded children to relatives of the appellant. The appellant had assigned three grounds for error by the trial court but the Court of Appeals found that one of them was dispositive. The appellate court held that the trial court abused its discretion by not holding a hearing on the appellant's motion for a change of disposition. The case was remanded for further hearings. 

In re B.S., 2013-Ohio-1976 was also a decision released on an appeal from a decision of the Summit County Juvenile Court. The opinion affirmed in part and reversed in part. 

The appellate court found that the trial court had erred when its magistrate determined the amount of money that the father made. The appellate court held that while the magistrate had extrapolated from the father's hourly wage what his annual income was, the father had testified that his hours varied. Therefore the Court of Appeals held that the trial court should have examined one calendar year's worth of wages. The Court of Appeals also found that the trial court erred when awarding the tax exemptions for both children to the father. 

State v. Oliver, 2013-Ohio-1977 was a decision on an appeal from the Summit County Court of Common Pleas in a criminal case. The appellate court reversed and remanded. It found that the trial court committed reversible error when it examined the attorney who had represented the appellant during the case and also was with him at the hearing to withdraw his plea. The trial court examined the attorney itself and didn't allow the appellant an opportunity to examine him through different counsel. The appellate court reversed and remanded with directions that the trial court appoint a new attorney for the appellant. 

Third Fed. Sav. & Loan Assoc. of Cleveland v. Schlegel, 2013-Ohio-1978 reversed and remanded a judgment in favor of Third Federal. Schlegal argued that the trial court had erroneously granted a summary judgment to Third Federal because there were material issues of fact regarding whether Third Federal had the right to accelerate on the note and foreclose of the property. 
The Court of Appeals found that there was a factual issue of whether there was a default on the note. The decision reversed and remanded for further proceedings. 

Ninth District Opinions from Lorain County for May 13, 2013

The Court of Appeals for the Ninth Appellate District released two opinions that were decisions from appeals filed from the Lorain County Court of Common Pleas. One decision was a criminal case and the other was a civil case. 

The criminal case was State v. Seymour, 2013-Ohio-1936. Mr. Seymour raised two assignments of error. The first was that the verdict was based on insufficient evidence and the second was that the verdict was against the manifest weight of the evidence. Both assignments were rejected and the trial court was affirmed. 

The civil case was Miller v. Community Health Partners, 2013-Ohio-1935. This decision concerned a employee of Community Health Partners who filed a claim for worker's compensation. 

Initially Ms. Miller filed a claim for a injury to her back that she received while working. The Industrial Commission allowed the claim. Community Health Partners appealed the Commission's ruling.  While the employer's appeal to the Common Pleas Court was pending, Ms. Miller filed a motion to have her back injury claim modified to include psychological issues allegedly caused by the back injury. The Industrial Commission allowed the claim for the psychological injury and Community Health Partners did not file an appeal of that decision. 

Ms. Miller argued in the Common Pleas Court that since her employer did not appeal the decision allowing the psychological claim, and since that claim arose out of the back injury, the employer was now bound by the rule of res judicata regarding its appeal of her back injury claim. The Common Pleas Court agreed with her and granted summary judgment against Community Health Partners. It held that under the doctrine of res judicata Community Health Partners could not re-litigate Ms. Miller's back injury. 

In its opinion the Court of Appeals pointed out that the term res judicata in Ohio includes both issue preclusion (collateral estoppal) and claim preclusion. Since the employer never had an opportunity to litigate the back injury, the doctrine of res judicata didn't apply, no matter if it was used to preclude issues or preclude claims. The Court of Appeals reversed the summary judgment in favor of Ms. Miller and remanded the case for further proceedings. 

Ninth Appellate District Opinions from Wayne County Released on May 13, 2013

The Court of Appeals for the Ninth Appellate District released two opinions on appeals out of Wayne County. 

Weygandt v. Ward, 2013-Ohio-1937 was a case involving an appeal from a decision of the Wayne County Common Pleas Court. The facts were as follows:

Fred Ward died in 1988, leaving his wife a life estate in his property. His will provided that, upon his wife’s death, his real property would pass to his son Virgil, who also received a life estate. The will provided that Virgil could “sell and dispose of any or all of said real property for such prices and upon such terms as he in his own discretion may deem advisable * * *.” If Virgil sold any of the land, however, he had to divide the proceeds into six parts. Virgil was allowed to keep two of the parts but he had to give the others to his four sisters or their descendants.

One of the properties that Virgil received after Mr. Ward’s wife died was a 240-acre farm that he and his father had farmed together. Virgil continued farming the land for several years until it became too difficult for him. He began renting the land to his niece and her husband, Diane and Roger Baker, who lived nearby.

Desiring to keep the 240-acres together as a family farm, Virgil later decided that he wanted the Bakers to have the land. After consulting with a lawyer, he learned that he could not give the land to the Bakers, but could sell it to them. According to the Bakers, Virgil proposed that he sell the land to them for $1000 an acre, contingent on it remaining a farm and their letting him live on the land until his death. The Bakers agreed to those terms. They executed a sales agreement and mortgage, under which the Bakers would pay $240,000 for the property and Virgil would receive the first $50,000 in mortgage payments to reimburse him for improvements he had made to the farm with the rest to be divided between him and his sisters as provided in Fred Ward’s will.

After learning about the sale, some of Virgil’s sisters and their descendants sued Virgil, the Bakers, and anyone else who might have an interest in the land, seeking a declaration that the sale was void. The trial court dismissed the action because it determined that Fred Ward’s will gave Virgil power to sell the land under whatever terms he desired. This Court reversed, however, because we determined that, under the Ohio Supreme Court’s holding in Johnson v. Johnson, 51 Ohio St. 446 (1894), Virgil owed a fiduciary duty to his sisters and their descendants “as their implied, quasi trustee.” Weygandt v. Ward, 9th Dist. No. 09CA0050, 3 2010-Ohio-2015, ¶ 12. We remanded the case to the trial court for it to determine whether Virgil acted within his authority when he conveyed the property to the Bakers. Id. at ¶ 13, 15.

At trial, Virgil’s sisters presented evidence that, at the time Virgil sold the property for $240,000, its fair market value was $1,170,000. They argued that, even though Virgil had discretion to sell the land at “such prices and upon such terms as he * * * may deem advisable,” he had breached his duty of good faith to them. The trial court agreed, concluding that Virgil “did not have the authority to convey the real property for insufficient consideration, reserve a life estate for himself, grant an agricultural easement on the property, and take a note and mortgage on the property whereby he received the first $50,000 in payments before any monies were to be paid to Plaintiffs and others.” It, therefore, declared all of the documents that were involved in the conveyance null and void. 

Virgil and the Bakers filed the appeal alleging seven assignments of error. The first assignment of error concerned the trial court's decision that Virgil didn't have the power to sell the land at such a price and on such terms as he decided. The Court of Appeals overruled this assignment of error. The Court of Appeals overruled this assignment of error because under the law of the case resulting from the prior appeal Virgil didn't have the right to question the Court of Appeals determination that he didn't have unbridled discretion to sell the property. 

The second assignment of error concerned whether the trial court erred in finding that the consideration that the Bakers paid Virgil was insufficient. The Court of Appeals affirmed the trial court's decision on the theory that when he was given a life estate, Virgil became a quasi-trustee to manage the property as a fiduciary to his sisters. The Court of Appeals pointed out that although its language concerning the existence of such a duty was dicta in the first appeal decision, the trial court acted correctly in following that language. 

The third assignment of error concerned whether the trial court had failed to ascertain the intent of the testator in interpreting the will. The Court of Appeals held that the law of the case meant that the trial court had to consider Virgil as a quasi-trustee, thus making testator's intent irrelevant. 

The fourth assignment of error was that the trial court should have awarded damages instead of invalidating the sale of the Ward farm. The Court of Appeals sustained this assignment of error because under Ohio law while a trial court can void a transfer by a fiduciary acting in violation of his or her fiduciary duties, a purchaser who makes a bona-fide purchase without knowledge of the violation of the fiduciary duties may retain the property. The Court of Appeals remanded for further evidence regarding those issues. 

The fifth assignment of error dealt with whether the trial court erred in admitting parol evidence. The Court of Appeals found that it had not. 

The sixth assignment of error concerned whether the trial court erred in admitting evidence of the value of a fee simple interest in the Ward farm. The Court of Appeals held that it did not. 

The seventh assignment of error concerned whether the trial court erred in issuing a protective order to bar depositions of out of state witnesses in Ohio. The appellate court held that it did not. 

The other decision regarding an appeal from a Wayne County case was Daugherty v. Daugherty, 2013-Ohio-1934. This case also involved an appeal from a domestic relations case. In this case, the Court of Appeals affirmed in part and reversed in part. 

In this case the wife filed an appeal which listed two assignments of error.  In discussing the first assignment of error, the appellate court wrote the following: "The crux of Wife’s argument is that the parties had not reached an agreement regarding the allocation of certain real property in which Husband had an interest. She argues that, accordingly, the trial court erred by enforcing the parties’ alleged consent agreement to temporary orders regarding such property while the divorce action was pending." 


The Court of Appeals went on to note that at trial the wife stated that the only issue in dispute was the amount of spousal support. The Court found that making this stipulation acted as a waiver of the issue raised in the first assignment of error. Consequently that assignment of error was overruled. 

In the second assignment of error the appellate court dealt with the issue of whether the amount of spousal support awarded by the trial court was unreasonable. The Court of Appeals found that it was and reversed the spousal support award and remanded the case back to the trial court for proceedings consistent with the opinion. 

Ninth District Opinion in a Divorce Case Appeal

The Court of Appeals for the Ninth Appellate District released one opinion on May 8, 2003. The appeal was from a decision of the Summit County Domestic Relations Court. The appellate court reversed in part and affirmed in part. 

The decision was Zaccardelli v. Zaccardelli, 2013-Ohio-1878. The facts of the case are as follows:

After executing a prenuptial agreement, Mark J. and Renee C. Zaccardelli 
(“Husband” and “Wife,” respectively) were married on July 7, 2000. The parties’ prenuptial 
agreement provided, in part, that Husband’s premarital property, including a residence on Carter Road and his interest in his family’s business, Blue Line Design, Inc. (“Blue Line”), together with the increase in value to his separate property would remain his property, free of any claim by Wife. After their wedding, the parties resided in the Carter Road residence. During their marriage, Husband worked for Blue Line, and Wife worked as a teacher until the parties’ son was born in 2002. When their son was born, Wife terminated her fulltime employment in order to stay home with their son, and later, to stay home with their daughter, who was born in 2004. During that time, Wife provided tutoring services, worked part-time from the home, and continued her education, obtaining her master’s degree in education. In 2007, Husband and Wife executed a deed transferring title of the Carter Road property to their joint ownership with rights of survivorship. 

In 2010, Wife filed a complaint for divorce in the trial court. After a hearing, the trial court issued an order finding that the prenuptial agreement was valid and enforceable. However, the court determined that, pursuant to a provision in the agreement, the parties could 
modify the agreement through a writing signed by both parties. The trial court determined that the 2007 deed effectively modified the prenuptial agreement in regard to the Carter Road property. 

The case proceeded to final hearing, and, on December 16, 2011, the trial court 
issued a decree of divorce. In the decree, the trial court determined that one-half of the “retained earnings” held by Blue Line constituted undisbursed income attributable to Husband as a fifty percent shareholder in the company. The court concluded that Husband’s share of Blue Line’s retained earnings that had accumulated during the marriage constituted marital property, which was subject to division. The court further determined that the Carter Road property was subject to division between the parties due the 2007 deed. The court reviewed parenting time recommendations submitted by the guardian ad litem and the family court services investigator. The court further reviewed shared parenting plans that the parties had submitted. The trial court adopted Wife’s proposed plan in the decree. 

The appellant-husband listed seven assignments of error in his appeal. The first assignment of error concerned the trial court's decision to award the wife one-half of the income from a closely held business entity. The Court of Appeals affirmed the trial court on that issue. 

The third assignment of error concerned the trial court's decision to award one-half interest in a piece of real estate that the husband argued had been excluded from the trial court's control because of a pre-nuptial agreement. The Court of Appeals affirmed the trial court's decision regarding the property because it found that the husband had contractually agreed to give his wife a one-half interest after the pre-nuptial agreement was signed. 

The fourth assignment of error concerned the trial court's refusal to consider the wife's master's degree, which was obtained during the marriage as a marital asset. The Court of Appeals affirmed the trial court's decision holding that under Ohio Supreme Court precedent a advanced degree is not a marital asset. 

The second assignment of error concerned the trial court's valuation of property located in Sagamore Hills. The husband argued that the trial court abused its discretion regarding this valuation. The Court of Appeals disagreed and affirmed the trial court on this issue. 

The fifth assignment of error concerned the trial court's decision to adopt the shared parenting plan presented by the wife and not adopt the one that was presented by the husband. The Court of Appeals reviewed this on an abuse of discretion standard and found no abuse of discretion. 

The sixth assignment of error concerned the trial court's decision to order the husband to maintain a life insurance policy with his wife named as beneficiary while not imposing the same requirement on the wife. On this assignment of error the Court of Appeals wrote the following: 


"Therefore, we conclude that the trial court could properly order Husband to secure the property division payment and his child support obligation with a life insurance policy. To 
the extent Husband has argued otherwise, his sixth assignment of error is overruled. However, in regard to the beneficiary designation of such a policy, it was improper for the trial court to require Husband to name Wife as the beneficiary to the extent that the policy secured Husband’s child support obligation. Therefore, to this extent, Husband’s sixth assignment of error is sustained."

The seventh assignment of error concerned the trial court's decision to require the husband to pay for a private school over and above his child support obligation. The Court of Appeals affirmed the trial court's ruling on that issue.  

Ninth District Court of Appeals Opinion Released May 6, 2013

 Baker v. Nationwide Mut. Ins. Co., 2013-Ohio-1856 is a decision reversing in part and affirming in part a decision from the Summit County Common Pleas Court. The decision, which was released on May 6, 2013, concerns a motion for summary judgment that was granted by the trial court. The main issue in the case involved the construction of an insurance policy. 

The decision sets forth the facts as follows:

"Mr. Baker owns several rental properties that he insured with Nationwide. In March 2007, the water pipes at an unoccupied multi-unit property burst, causing damage to the building. Following the incident, Mr. Baker made repairs to the water lines in the basement and to drywall on the first floor. Before finding new tenants, he decided to fix other parts of the property as well. Between March 2007 and June 2010, he repaired or replaced the front porch flooring, the roof on the back porch, ceiling tiles throughout the building, a broken toilet, drywall and carpeting. He also did some painting. He intended to replace one of the hot water tanks and complete some other repairs, but sometime between June 8 and June 15, thieves broke into the property and stripped it of its copper plumbing and fixtures. 

Mr. Baker reported the break-in to the police and filed a claim with Nationwide. Nationwide denied the claim, however, because it determined that the property had been “vacant for more than 60 consecutive days[.]” After receiving Nationwide’s decision, Mr. Baker sought a declaratory judgment that the damage is covered because, under his policy, “[b]uildings under construction or renovation are not considered vacant.” He also sued Nationwide and the adjuster who processed his claim for damages for allegedly acting in bad faith. 

The trial court dismissed Mr. Baker’s claim against the adjuster because it determined that he had failed to state a claim for relief under Civil Rule 12(B)(6). Following discovery, Nationwide and Mr. Baker filed cross-motions for summary judgment. The court granted Nationwide’s motion because it determined that Mr. Baker had not repaired the 2007 damage “as quickly as possible,” which it concluded was required under his policy and because his intermittent repairs to the other parts of the property did not constitute “construction or \renovation.” "

The Court of Appeals affirmed the decision of the trial court to dismiss the claim against the adjuster for bad faith pursuant to Civ. R. 12 (B) (6).  In affirming the dismissal the Court of Appeals noted that the obligation to act in good faith toward insureds is based on the contractual relationship between the insurance company and its policyholder. There is no such contractual relationship between an individual adjuster and a policyholder. Thus the duty arises out of the contractual relationship. Since adjusters and policyholders don't have such a relationship, there is no duty, and hence no tort. 

The Court of Appeals, however, reversed the granting of Nationwide's motion for summary judgment. In so doing the Court of Appeals noted that the language that was relied on by the trial judge was not a condition precedent to recovery but was language that limited the amount that could be recovered. In the words of the decision: "Mr. Baker’s duty to resume operations “as quickly as possible” after a loss was not a condition precedent to coverage, but a duty bearing on the amount of his recovery."

Chief Justice Floats Judicial Election Reform

Below is a link to an article on Cleveland.com concerning proposals that Chief Justice Maureen O'Connor made to the Ohio State Bar Association regarding reform of judicial elections. http://www.cleveland.com/open/index.ssf/2013/05/ohio_chief_justice_maureen_oco.html

Among other things she recommends doing away with the present system whereby judicial candidates are nominated in party primaries but run non-partisan in the fall; increasing the length of judicial terms of office; increasing the number of years that a judicial candidate has to have been licensed to practice law before running for judicial office; holding judicial elections in odd-numbered years so that judicial races aren't overshadowed by races for Governor and President; and moving judicial races up toward the top of the ballot instead of having them at the bottom of the ballot as is presently done. 

Ninth District Court of Appeals Opinion for May 1, 2013

The 11 decision issued by the Court of Appeals for the Ninth Appellate District were:

Ohio Metal Servs., L.L.C.v. TrueForge Mach. Corp., 2013-Ohio-1776 which is a appeal from a decision of the Summit County Court of Common Pleas. TrueForge appealed the granting of a motion notwithstanding the verdict to Ohio Metal Services. The Court of Appeals affirmed the trial court's decision.

The facts, as stated by Judge Hensal in her opinion, are as follows:

TrueForge offered to buy a 2000- to 2500-ton forging press from Ohio Metal for  $150,000. Ohio Metal accepted its offer, but the parties later disagreed over whether TrueForge  had the right to inspect the press before completing the sale. After TrueForge refused to pay for the press, Ohio Metal sued it for breach of contract, quantum meruit, promissory estoppel, and specific performance. At trial, a jury found that TrueForge breached the contract, but it awarded Ohio Metal no damages. Ohio Metal moved for judgment notwithstanding the verdict, arguing that, since TrueForge breached the contract, it was entitled to $150,000. It also moved for a new trial and specific performance. The trial court granted Ohio Metal’s motion for judgment notwithstanding the verdict. It awarded $150,000 to Ohio Metal and awarded the press to TrueForge. The court “conditionally granted” Ohio Metal’s motion for new trial in the event that its ruling on the motion for judgment notwithstanding the verdict was overturned. It denied the motion for specific performance.

During the trial the parties agreed that if there was a verdict in favor of Ohio Metal the contract would be enforced. The issue on appeal was whether Ohio Metal was entitled to receive the value of the contract. TrueForge argued that Chapter 1302 of the Ohio Revised Code a seller of "goods" doesn't have a cause of action for specific performance. A seller does, however, have an action for the price of the goods that it contracted to sell under R.C.  1302.83(B). Under that section a seller can recover the price of goods contracted but not paid for, but has to hold any goods that were due under the contract and that have not yet been tendered. This is so that they can be transferred to the buyer once the buyer pays the price of the goods.  

In this case the Court of Appeals noted that since the parties had agreed that the contract would be enforced if there was a verdict for Ohio Metal, TrueForge had waived any error that the trial court may have committed in applying R.C. 1302.83(B).

State v. Strebler, 2013-Ohio-1775 is a decision affirming a DUI conviction out of the Summit County Common Pleas Court. Mr. Strebler argued that the evidence offered by the State at trial was not sufficient to show beyond a reasonable doubt that he was under the under the influence of alcohol when his vehicle was involved in a collision. The Court of Appeals noted that there was testimony from a toxicologist that whether Mr. Strebler was impaired would depend on his tolerance to the drugs that were in his system. The Court of Appeals pointed out that what is at issue in a DUI trial is whether the ability to operate a motor vehicle was impaired not whether the actual operation was impaired.  Using that analysis the appeals court found that the conviction should be affirmed.

Rubber City Arches Graham,L.L.C. v. Joe Sharma Properties, L.L.C., 2013-Ohio-1773 is a decision on an appeal from a decision of the Summit County Court of Common Pleas that held that Rubber City Arches had an easement over property that was owned by Joe Sharma Properties. Although both parties appealed the Court of Appeals only ruled on the assignment of error brought by Joe Sharma Properties.

The appeal concerned whether the trial court had considered the argument advanced by Joe Sharma Properties that the right in its land was a license and not an easement. Since the trial court did not consider this argument, the Court of Appeals remanded the case back to the trial court. Since the case was remanded on the appellant's assignment of error, the appellate court held that the assignment of error raised by the Rubber City Arches was not yet ripe for consideration.

State v. Rye,2013-Ohio-1774 is a decision involving a criminal appeal from the Summit County Common Pleas Court. In 2010 Mr. Rye was convicted of several crimes by plea. He was sentenced to six years in prison pursuant to a plea bargain but failed to appear for the execution of the sentence. A warrant was issued and he was apprehended.

Judge Gallagher, who was the judge who took the plea and imposed the sentence, vacated the prior sentencing entry and gave Mr. Rye 10 years in prison. The re-sentencing journal entry was signed by a judge other than Judge Gallagher. Rye then appealed the re-sentencing on the grounds of double jeopardy and the Court of Appeals for the Ninth Appellate District affirmed the appeal. He then filed a motion asking the trial court to "alter, amend, or vacate" a void judgment. His argument was that since the re-sentencing entry had been signed by a judge other than Judge Gallagher it was void under Crim. R. 11.

The Court of Appeals rejected this argument. The Court of Appeals affirmed the trial court's decision denying the motion on two grounds. The first was that if the appellate court treated the motion as a motion for post-conviction relief, it was not timely filed since it was filed later than 180 days after the trial transcript was filed in the court of appeals on his 2010 appeal. Since review of a denial of a petition for post-conviction relief is done under an abuse of discretion standard, and since the appellate court did not find such abuse, it could not overturn the trial court's decision.

The second ground was whether the resentencing journal entry had to be signed by Judge Gallagher. That issue is an issue of law and an appellate court reviews such an issue under de novo standard. Applying that standard the Court of Appeals found no error of law. It held that under prior decisions it had found that a sentencing entry which imposes a pronounced sentence is a "ministerial act" and can be done under Crim. R. 25 by a judge other than the judge who pronounced the sentence. Although Crim. R. 25 lists reasons why a judge other than the trial judge can sign the entry, it was up to Mr. Dye to show that those reasons didn't apply because an appellate court presumes regularity in a trial court's procedures. Mr. Dye didn't overcome that presumption.

State v. Romanda,2013-Ohio-1771 is a decision affirming a trial court's denial of a petition for post-conviction relief. Mr. Romanda alleged four assignments of error in his appeal, but since he had only mentioned two of them in his petition for post-conviction relief, the Court of Appeals held that it didn't have to review the other two assignments of error.

The two assignments reviewed were whether the trial court erred in not merging certain offenses when it sentenced him and whether it failed to give him a "full hearing" on his petition. The Court of Appeals held that the merger issue could have been addressed on his direct appeal from the sentence and since it wasn't raised, the issue was waived. It also held that since Mr. Romanda didn't file his petition within the time limits established by R.C. 2953.21, the trial court did not abuse its discretion in denying the motion without a "full hearing." The Court of Appeals then affirmed the trial court's decision.

Biondi v. Oregon Homes,L.L.C., 2013-Ohio-1770 is a decision affirming an order from the Summit County Common Pleas Court denying a motion to compel arbitration. The decision contains a discussion regarding the applicability of arbitration agreements and the scope of such agreements. In this case the Court of Appeals found that the arbitration agreement didn't include the particular dispute between the plaintiffs and Oregon Homes. Since the dispute at issue wasn't covered by the agreement, the trial court acted properly in denying the motion to compel.

State v. Harmon,2013-Ohio-1769 is a decision affirming a decision of the Summit County Common Pleas Court not to merge certain offenses committed by Mr. Harmon. The issues are stated by Judge Belfance in her opinion at P14: "Specifically, Mr. Harmon argues that count five of kidnapping and count seven of felonious assault should have merged and that count seven of felonious assault and count eight of domestic violence should have merged." The Court of Appeals did not agree with Mr. Harmon's arguments regarding the merger of the above named offenses. The decision contains a discussion of why the Court of Appeals believed that the offenses should not have merged.

State v. Ford,2013-Ohio-1768 is a decision vacating a sentence and remanding for a new sentencing hearing. The issue on appeal was whether a trial court could deviate from an agreement that was made at the time of the change of plea between the State and Mr. Ford regarding the amount of restitution owed by Mr. Ford. The agreement was that Ford would pay restitution only for the amount of checks he had received from a dealer to whom he had sold a coin and stamp collection that he stole from a person who was hospitalized. At the change of plea hearing the prosecutor stated that she believed that the amount of restitution ordered was "around $10,000.00."  The trial judge ordered that the pre-sentence investigation determine what the total amount of those checks. The report revealed that the total amount was $12,425.00.

At the sentencing hearing, however, the trial judge ordered restitution in the amount of $76,425. Ford appealed that decision arguing that the trial court could not order restitution greater than the theft limits of the third degree felony for which he was sentenced. The Court of Appeals agreed with that argument and ordered a resentencing hearing. Before the hearing could take place, however, the trial court put on another entry stating that since Ford had not objected at the sentencing hearing to the restitution amount that he had essentially waived that argument and then ordered restitution in the amount of $24,999.99.

It was that second order that was vacated by the appellate court. The Court of Appeals held that since the trial court had not given notice that it didn't intend to follow the plea bargain agreement Ford did not enter a knowing plea. The Court of Appeals noted that while a plea bargain agreement between the State and a defendant does not necessarily bind a trial court, that a trial court has to give notice if it finds that it should not follow the agreement. Since this wasn't done, the sentence was vacated.

State v. Dawson,2013-Ohio-1767 is a decision affirming a denial of a motion to resentence a defendant made by the Summit County Common Pleas Court. The issue in the appeal involved whether a sentencing entry that allegedly fails to comply with Crim. R. 32 is a void sentence as opposed to a appealable sentence.

The Court of Appeals noted that the sentence was not a void sentence since the Summit County Common Pleas Court had subject matter jurisdiction. The Court of Appeals also noted that the errors that were allegedly made in the sentencing entry could have been reviewed on a direct appeal at the time that the sentence was entered. Since a direct appeal was not taken, the Court of Appeals held that the error could not be reviewed because of the doctrine of res judicata.

State v. Collmar,2013-Ohio-1766 is a decision affirming Mr. Collmar's conviction for one count of felonious assault, one count of felony domestic violence, and one count of misdemeanor domestic violence. He assigned three errors. One was that the trial court erred in denying his motion for a Crim. R. 29 acquittal, the second was that the trial court erred because his conviction was against the manifest weight of the evidence, and the third was that the trial court acted vindictively when it sentenced him.  Mr. Collmar alleged that he was sentenced to prison because he had gone to trial and that the prison sentence also followed remarks he made during allocution.

The Court of Appeals rejected all three assignments of error. With regard to the issue of whether the sentence was vindictive the Court noted that a decision out of the Court of Appeals for the Seventh District, State v. Mayle, 2005-Ohio-1346 in paragraphs 44 & 45 contained a very good discussion on why defendants may not be punished for exercising their right to trial. The Court of Appeals went on to note, however, that the trial judge explicitly rejected a suggestion by the State that he should be punished for refusing a deal before trial. Further the Court found that there were ample reasons for the trial judge to order a prison sentence. Therefore the appellate court found no evidence of vindictiveness.

Ciszewski v. Kolaczewski,2013-Ohio-1765 is a decision affirming the granting of a motion for summary judgment by the Summit County Court of Common Pleas. The case involved a dispute over an inheritance. Originally the case was settled, but the appellants later filed a lawsuit seeking damages for intentional interference with an expected inheritance, damages for conversion of assets from the estate by the fiduciary, and for the establishment of a constructive trust. The trial court granted summary judgment on all claims.

The decision contains discussion regarding the tort of intentional interference with an inheritance and a discussion of the creation of a fiduciary relationship. On the legal issues the Court of Appeals found in favor of the appellee.

The appellants also raised the issue that the trial court incorrectly relied on evidence that was not in compliance with Civ. R. 56. The evidence was in the form of handwritten letters. The appellants moved to strike the letters. Without ruling on the motion to strike the trial court granted the motion for summary judgment.

The Court of Appeals noted that it reviews orders granting motions for summary judgment on a de novo standard. Applying that standard the appellate court found that the admission of the letters was harmless error.

Ninth District Opinions Released April 29, 2013

Last week the Court of Appeals for the Ninth Appellate District released 14 opinions. Three were released on April 29, 2013 and 11 were released on May 1, 2013. The opinions released on April 29, 2013 were:

In reC.R., 2013-Ohio-1724 was an appeal by the State from a decision of the Medina County Juvenile Court granting a motion to suppress. The Court of Appeals affirmed the trial court's decision. In the opinion there is an interesting discussion of whether the Ohio Rules of Evidence apply to hearings on motions to suppress evidence.

The Court of Appeals opinion noted that under Evid. R. 101 (C) (1) and Evid. R. 104 (A) a trial court is not bound by the Rules of Evidence when making preliminary decisions regarding the admissibility of evidence except with respect to privileges. The State argued in its appeal that since the Juvenile Court was not bound by the Rules of Evidence it erred in not admitting hearsay evidence in the form of one officer testifying as to what another office had told him.

The Court of Appeals noted that while the Rules of Evidence don't apply in a suppression hearing, hearsay evidence is still regarded by courts as unreliable. The Juvenile Court held that the State hadn't met its burden. Thus, the Court of Appeals reasoned that if the Juvenile Court would have allowed the hearsay evidence, it wouldn't have changed the Juvenile Court's ruling that the State hadn't met its burden.

The Court of Appeals also overruled other assignments of error raised by the State. The opinion was a 2 to 1 opinion. Judge Hensal wrote the Court's opinion and Judge Whitmore filed a opinion that concurred in part and dissented in part.

McMillanv. Global Freight Mgt., Inc., 2013-Ohio-1725 was an appeal by the Plaintiff from a decision of the Lorain County Common Pleas Court. The decision appealed from was a decision granting a motion for summary judgment in a wrongful termination lawsuit. The Plaintiff contended that his termination from employment by the Defendant was due to his filing a claim for Worker's Compensation. The issue raised on appeal was whether there is a common law claim for wrongful discharge for filing a worker's compensation claim in addition to bringing a cause of action under R.C. 4123.90.

The Court of Appeals held in a decision that was written by Judge Moore that a common law cause of action for the tort of violating public policy does not exist in Ohio. In reaching its conclusion the Court of Appeals relied on a decision from the Ohio Supreme Court and distinguished a decision that was cited by the Plaintiff. The decision of the Lorain County Common Pleas Court was affirmed.

Schmuckerv. Kurzenberger, 2013-Ohio-1726 was an appeal by both parties of a decision by the Wayne County Common Pleas Court granting a motion for summary judgment filed by the Wayne Mutual Insurance Company. The Plaintiffs appealed the decision granting the motion on one ground and the insurance company appealed the part of the decision that denied the motion on another ground.

The issue in the appeal was whether there was coverage for an automobile accident that ended up killing a young woman who was the daughter of a woman who, along with her husband, had a policy issued by Wayne Mutual. When the accident happened the young woman was a passenger in a car driven by her father.  Her father had drove the car left of the center line. His daughter grabbed the wheel and pulled the car back. When she did that her father overcorrected and lost control of the vehicle.

The trial court found, and the Court of Appeals agreed, that when the accident took place the daughter was not using the car as she was permitted. This is known as a "unpermitted use exclusion." The Court of Appeals also found that the trial court was correct in holding that the "regular use exclusion" also excluded coverage.

The Insurance Company appealed the trial court's decision not to exclude coverage under an "intentional act exclusion." The Court of Appeals ruled that its ruling on the two assignments of error raised by the Plaintiffs rendered the issue of "intentional act exclusion" moot and declined to address it.

The decision was a 2-1 decision. Judge Carr authored the opinion and Judge Whitmore concurred while Judge Moore wrote a dissent.