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.