The Court of Appeals for the Ninth Appellate District released two opinions on June 19, 2013. Both were appeals from the Summit County Common Pleas Court. One case was a criminal case and the other was a civil case.
The criminal case was State v. Stull, 2013-Ohio-2521, which was an appeal from the trial court's denial of a petition for post-conviction relief. The Court dismissed the appeal for lack of a final appealable order. The Court noted that a trial court must issue findings of fact and conclusions of law when ruling on a petition for post-conviction relief. If the entry doesn't contain such findings and conclusions the Court of Appeals lacks jurisdiction to consider the appeal. Since the trial court did not make such findings of fact and conclusions of law, the appeal was dismissed for lack of a final appealable order.
The civil case was Jackovic v. Webb, 2013-Ohio-2520 in which Mr. and Mrs. Jackovic appealed from the trial court's denial of their motions for a directed verdict, for a judgment notwithstanding the verdict, and for a new trial. They also argued that the verdict was against the manifest weight of the evidence.
The Jackovics argued that the trial court should have directed a verdict in their favor on the issue of whether the defendant's negligence caused medical bills for emergency medical care. The Court of Appeals agreed with this argument. They also argued that the trial court should have directed a verdict on the issue of whether the defendant's negligence caused medical bills for treatment following the day of the accident. The Court of Appeals rejected this argument stating that on that issue reasonable minds could come to different conclusions. Since it had reversed in part and affirmed in part on that assignment of error the Court of Appeals reversed and remanded.
On the motion for a judgment notwithstanding the verdict the Court found that its resolution of the first assignment of error rendered that assignment of error moot. The motion for a new trial was based on three subsections of Civ. R. 59. On the two arguments involving Civ. R. 59 (A) (7) and (9) the appellate court affirmed the trial court's decision overruling the motion. On the argument involving Civ. R. 59 (6) the appellate court found that its decision on the first assignment of error rendered that assignment moot. The Court also found that the assignment of error that the verdict was against the manifest weight of the evidence was also moot.
Sunday, June 30, 2013
Court of Appeals Decision Released on June 17, 2013
The Court of Appeals for the Ninth Appellate District released one decision on June 17, 2013. The decision was State v. Leyda, 2013-Ohio-2495 and was an appeal from a decision of the Wayne County Municipal Court. Mr. Leyda appealed from his conviction for domestic violence. He raised three assignments of error. The first was that his counsel was ineffective for not attempting to present evidence of his wife's alleged prior bad acts. The second was that the trial court was guilty of judicial misconduct. The third was that the conviction should be overturned because there was no physical evidence corroborating the oral testimony of his wife. The Court of Appeals rejected all three assignments of error. Judge Belfance wrote a separate concurring opinion in which she stated that she would affirm because Mr. Leyda was relying on evidence outside of the trial court's record.
Ninth District Opinions Released on June 24, 2013
The Court of Appeals for the Ninth Appellate District released three opinions on June 24, 2013. Two were from Medina County and one was from Lorain County.
The case from the Lorain County Common Pleas Court was State v. Malone, 2013-Ohio-2605, a criminal case in which the Court of Appeals affirmed the trial court's judgment. Mr. Malone cited two assignments of error. The first was that the trial court erred in not allowing him to withdraw his guilty plea. The second was that his counsel was ineffective in not advising him of the strength of the State's case and in not conducting a proper pre-trial investigation. The Court overruled both assignments of error. Judge Carr concurred in the judgment of the Court only since she would have affirmed on the basis of res judicata. She wrote in her concurring opinion that Mr. Malone could have raised these issues on a direct appeal and that since he didn't, he couldn't raise them on this appeal from the trial court's denial of his motion to withdraw his plea.
The two Medina County cases were both criminal cases out of the Medina County Court of Common Pleas. In one case the appellate court affirmed the trial court and in the other case the court reversed and remanded.
The case in which the trial court was affirmed was State v. Sebestyen, 2013-Ohio-2606. Mr. Sebestyen appealed from the trial court's decision overruling his motion to withdraw his guilty plea. The Court of Appeals affirmed the trial court's decision under the doctrine of res judicata. The Court noted that Mr. Sebestyen could have raised the issues on a direct appeal. The Court further noted that the fact that Mr. Sebestyen didn't file a direct appeal doesn't stop the doctrine from being applied to his appeal from the decision regarding his motion to withdraw his plea.
The case in which the trial court was overruled was State v. Labriola, 2013-Ohio-2604. Labriola was convicted after a jury trial of complicity to commit arson. Mr. Labriola raised two assignments of error. The first was that his conviction was not based on sufficient evidence. The Court of Appeals rejected this argument. The second assignment of error was that the assistant prosecutor's comments during closing argument were an impermissible comments on Labriola's credibility and the credibility of other witnesses. The Court of Appeals accepted this assignment of error and reversed his conviction. The case was remanded back to the Common Pleas Court for a new trial.
The case from the Lorain County Common Pleas Court was State v. Malone, 2013-Ohio-2605, a criminal case in which the Court of Appeals affirmed the trial court's judgment. Mr. Malone cited two assignments of error. The first was that the trial court erred in not allowing him to withdraw his guilty plea. The second was that his counsel was ineffective in not advising him of the strength of the State's case and in not conducting a proper pre-trial investigation. The Court overruled both assignments of error. Judge Carr concurred in the judgment of the Court only since she would have affirmed on the basis of res judicata. She wrote in her concurring opinion that Mr. Malone could have raised these issues on a direct appeal and that since he didn't, he couldn't raise them on this appeal from the trial court's denial of his motion to withdraw his plea.
The two Medina County cases were both criminal cases out of the Medina County Court of Common Pleas. In one case the appellate court affirmed the trial court and in the other case the court reversed and remanded.
The case in which the trial court was affirmed was State v. Sebestyen, 2013-Ohio-2606. Mr. Sebestyen appealed from the trial court's decision overruling his motion to withdraw his guilty plea. The Court of Appeals affirmed the trial court's decision under the doctrine of res judicata. The Court noted that Mr. Sebestyen could have raised the issues on a direct appeal. The Court further noted that the fact that Mr. Sebestyen didn't file a direct appeal doesn't stop the doctrine from being applied to his appeal from the decision regarding his motion to withdraw his plea.
The case in which the trial court was overruled was State v. Labriola, 2013-Ohio-2604. Labriola was convicted after a jury trial of complicity to commit arson. Mr. Labriola raised two assignments of error. The first was that his conviction was not based on sufficient evidence. The Court of Appeals rejected this argument. The second assignment of error was that the assistant prosecutor's comments during closing argument were an impermissible comments on Labriola's credibility and the credibility of other witnesses. The Court of Appeals accepted this assignment of error and reversed his conviction. The case was remanded back to the Common Pleas Court for a new trial.
Sunday, June 23, 2013
Video Review of Ohio's Criminal Rule 29
Below is the link to a short video clip, about 4:30, reviewing Ohio's Criminal Rule 29, which allows for a defendant to make a motion for a directed verdict of acquittal:
Monday, June 17, 2013
Ninth District Opinions Released on June 12, 2013
The Court of Appeals for the Ninth Appellate District released six opinions on June 12, 2013. All the opinions were for appeals from Summit County cases. My summaries of the opinions appear below.
Wilfong v. Petrone, 2013-Ohio-2434 was an appeal from a decision of the Summit County Common Pleas Court granting the defendants a summary judgment. The sole assignment of error was that the trial court was wrong in finding for the defendants on the allegations of breach of contract, fraud, and recission. The complaint was based on a contract between the parties for the purchase of a home. The plaintiffs claimed that they were not told the extent of water intrusion into the home prior to buying it. The Court of Appeals found that the observations of the plaintiffs prior to buying the home as well as disclosure by the defendants in their real estate sale documents were sufficient to put the plaintiffs on notice as to the existence of the water problems in the home's basements. Therefore the trial court was affirmed.
State v. Turner, 2013-Ohio-2433 affirmed a decision of the Summit County Common Pleas Court convicting the defendant of theft and misuse of credit cards. The opinion by Judge Carr contains an interesting discussion of the difference between the sufficiency of the evidence, which is the issue when a Crim. R. 29 motion is made, and the weight of the evidence. Citing to Ohio Supreme Court opinions Judge Carr points out that when the issue is the sufficiency of the evidence the question is whether the State met is burden of production. When, however, the issue is the manifest weight of the evidence the question is whether the State met its burden of persuasion.
Tillman v. Hyde Park Condominium #3 Owners’ Assn., 2013-Ohio-2432
reversed a decision from the Summit County Common Pleas Court granting attorney fees to the Owner's Association. The appellate court found that the trial erred when adopting findings of its magistrate because it didn't conduct an independent review as required by Civ. R. 53. Tilman's attorney did not file a transcript with her objections to the magistrate's decision but did file an affidavit. Judge Carr's opinion found that the affidavit was not sufficient because the rule requires a transcript if one is available. Here one was available,but not filed, and therefore the affidavit could not be used as a substitute. When a transcript is not filed, then the trial court must accept the magistrate's factual findings but must still conduct an independent review of the magistrate's legal conclusions. In this case that was not done, so the decision was reversed.
Magnum Steel & Trading, L.L.C. v. Mink, 2013-Ohio-2431 affirmed in part and reversed in part a decision from the Summit County Common Pleas Court. Mink argued that the trial court should have granted its motion for summary judgment, that the trial court erred when it didn't grant its motion for a directed verdict and for judgment notwithstanding the verdict and that the jury verdict was against the manifest weight of the evidence. All of those assignments of error were overruled. Magnum's assignments of error were that the trial court should have granted its motion for judgment notwithstanding the verdict apparently on the basis that the jury verdict in its favor on an unjust enrichment claim was inadequate. That assignment of error was rejected. Magnum also argued that the trial court erred in denying a motion for prejudgment interest on its verdict for promissory estoppel. That assignment of error was sustained.
State v. Hendrix, 2013-Ohio-2430 reversed a decision from the Summit County Common Pleas Court granting a motion to suppress. The Court of Appeals found that the entry of the police into the defendant's home was justified due to exigent circumstances which were that the police were responding to an emergency. In this case the appellate court found that the exception applied and reversed the trial court's decision.
State v. Hayes, 2013-Ohio-2429 affirmed a decision of the Summit County Common Pleas Court convicting the defendant of multiple counts of felonious assault, having weapons under a disability, improperly discharging a firearm into a habitation, and possession of heroin. The defendant was also convicted of firearm specifications attached to the various counts. He received 18 years in prison. He appealed alleging that the felonious assault convictions were against the manifest weight of the evidence and that the trial court should have found that more offenses were merged for purposes of sentencing. The appellate court rejected both assignments of error.
Wilfong v. Petrone, 2013-Ohio-2434 was an appeal from a decision of the Summit County Common Pleas Court granting the defendants a summary judgment. The sole assignment of error was that the trial court was wrong in finding for the defendants on the allegations of breach of contract, fraud, and recission. The complaint was based on a contract between the parties for the purchase of a home. The plaintiffs claimed that they were not told the extent of water intrusion into the home prior to buying it. The Court of Appeals found that the observations of the plaintiffs prior to buying the home as well as disclosure by the defendants in their real estate sale documents were sufficient to put the plaintiffs on notice as to the existence of the water problems in the home's basements. Therefore the trial court was affirmed.
State v. Turner, 2013-Ohio-2433 affirmed a decision of the Summit County Common Pleas Court convicting the defendant of theft and misuse of credit cards. The opinion by Judge Carr contains an interesting discussion of the difference between the sufficiency of the evidence, which is the issue when a Crim. R. 29 motion is made, and the weight of the evidence. Citing to Ohio Supreme Court opinions Judge Carr points out that when the issue is the sufficiency of the evidence the question is whether the State met is burden of production. When, however, the issue is the manifest weight of the evidence the question is whether the State met its burden of persuasion.
Tillman v. Hyde Park Condominium #3 Owners’ Assn., 2013-Ohio-2432
reversed a decision from the Summit County Common Pleas Court granting attorney fees to the Owner's Association. The appellate court found that the trial erred when adopting findings of its magistrate because it didn't conduct an independent review as required by Civ. R. 53. Tilman's attorney did not file a transcript with her objections to the magistrate's decision but did file an affidavit. Judge Carr's opinion found that the affidavit was not sufficient because the rule requires a transcript if one is available. Here one was available,but not filed, and therefore the affidavit could not be used as a substitute. When a transcript is not filed, then the trial court must accept the magistrate's factual findings but must still conduct an independent review of the magistrate's legal conclusions. In this case that was not done, so the decision was reversed.
Magnum Steel & Trading, L.L.C. v. Mink, 2013-Ohio-2431 affirmed in part and reversed in part a decision from the Summit County Common Pleas Court. Mink argued that the trial court should have granted its motion for summary judgment, that the trial court erred when it didn't grant its motion for a directed verdict and for judgment notwithstanding the verdict and that the jury verdict was against the manifest weight of the evidence. All of those assignments of error were overruled. Magnum's assignments of error were that the trial court should have granted its motion for judgment notwithstanding the verdict apparently on the basis that the jury verdict in its favor on an unjust enrichment claim was inadequate. That assignment of error was rejected. Magnum also argued that the trial court erred in denying a motion for prejudgment interest on its verdict for promissory estoppel. That assignment of error was sustained.
State v. Hendrix, 2013-Ohio-2430 reversed a decision from the Summit County Common Pleas Court granting a motion to suppress. The Court of Appeals found that the entry of the police into the defendant's home was justified due to exigent circumstances which were that the police were responding to an emergency. In this case the appellate court found that the exception applied and reversed the trial court's decision.
State v. Hayes, 2013-Ohio-2429 affirmed a decision of the Summit County Common Pleas Court convicting the defendant of multiple counts of felonious assault, having weapons under a disability, improperly discharging a firearm into a habitation, and possession of heroin. The defendant was also convicted of firearm specifications attached to the various counts. He received 18 years in prison. He appealed alleging that the felonious assault convictions were against the manifest weight of the evidence and that the trial court should have found that more offenses were merged for purposes of sentencing. The appellate court rejected both assignments of error.
Saturday, June 15, 2013
Ninth District Opinions Released on June 10, 2013
The Court of Appeals for the Ninth Appellate District released eight opinions on June 10, 2013. Below are short summaries of the opinions.
Vestige, Ltd. v. Mills, 2013-Ohio-2379 reversed a decision of the Medina County Common Pleas Court granting a directed verdict to the plaintiff on the defendant's counterclaim. The defendant had retained the plaintiff to perform a forensic examination of the computer belonging to the client of the defendant. The client was charged with possessing pornography involving minors on this computer. The plaintiff is a firm that offers computer forensic services. The defendant's client got convicted. The defendant believed that the plaintiff had breached its contract with the defendant by not providing its services in a competent and professional manner.
During the presentation of the counterclaim the defendant did not call an expert witness. This led to the trial court granting the plaintiff's motion for a directed verdict. The appellate court reversed the trial court on the grounds that the allegations being made by the defendant could be understood by a lay jury and no expert witness was needed.
Stanfield v. United States Steel Corp., 2013-Ohio-2378 reversed a decision from the Lorain County Common Pleas Court granting a motion for summary judgment filed by the defendant. The case involved whether the plaintiff was discharged for filing a workers' compensation claim. The Court of Appeals found that there were issues of material fact about whether the firing of the plaintiff was in retaliation for filing a workers' compensation and whether the employer's conduct was extreme and outrageous. The appellate court reversed and remanded for further proceedings.
Rodriguez v. S. Star Corp., 2013-Ohio-2377 affirmed a decision of the Medina County Common Pleas Court overruling a decision of the Unemployment Compensation Review Commission that denied unemployment benefits to the plaintiff. The plaintiff was an employee of the defendant who was assigned to work with a crew chief that had repeatedly used racial slurs around the plaintiff. The plaintiff asked to be reassigned to other crews, but the supervisor refused even though he had honored such requests in the past. The plaintiff then quit. The UCRC found that he had quit without just cause. The trial court reversed that decision and the Court of Appeals affirmed the trial court.
State v. Smetana, 2013-Ohio-2376 affirmed a decision of the Lorain County Common Pleas court that convicted the defendant of one count of sexual battery and one count of sexual imposition. The defendant appealed arguing that the trial judge had been biased against him, that his conviction was based on insufficient evidence, and that it was also against the manifest weight of the evidence. The Court of Appeals rejected all three assignments of error.
State v. Jones, 2013-Ohio-2375 reversed a decision of the Lorain County Common Pleas Court that suppressed evidence seized as the result of a traffic stop. The trial court held that the officer did not have probable cause to make a warrantless search of the trunk of the defendant's car following the stop. The State argued that the search was justified on the basis of the automobile exception to the warrant requirement. The Ohio Highway Patrol trooper who stopped the vehicle smelled an odor of marijuana. He found marijuana "shake" in the passenger compartment of the car, but believed that the shake was not the source of the odor. He searched the trunk and found more drugs, including marijuana and heroin. By a 2 to 1 vote the Court of Appeals upheld the search. The decision contains an interesting dissent by Judge Belfance in which she reviews the history of the automobile exception to the Fourth Amendment.
Wells Fargo Bank N.A. v. Horn, 2013-Ohio-2374 reversed of decision of the Lorain County Common Pleas Court that granted a summary judgment to Wells Fargo in a foreclosure action. The appellate court reversed and remanded with directions to dismiss the case without prejudice. The dismissal order was based on the recent Ohio Supreme Court case of Fed. Home Loan Mtge. Corp. v. Schwartzwald, 134 Ohio St.3d 13, 2012-Ohio-5017, ¶ 40.
Committe v. Rudolchick, 2013-Ohio-2373 reversed a decision granting a motion for summary judgment to a defendant in a negligent entrustment lawsuit. The Court of Appeals reversed because the documents cited in support of the motion were not evidentiary material required by Civ. R. 56. The Court pointed out that in the Ninth District a trial court may rely on documents that are not evidence as that term is used in Civ. R. 56. Here, though, the plaintiff objected to such documents and the trial court should not have considered them. Without the contested documents, the defendant did not establish that there was no issue of material fact.
Artim v. Lorain Cty. Bd. of Dev. Disabilities, 2013-Ohio-2372 both reversed and affirmed a decision of the Lorain County Common Pleas Court that had granted motions for summary judgment filed by the Disabilities Board and an employee of the Board. The lawsuit involved injuries received by a child of the plaintiffs' while she was undergoing therapy at a facility run by the Board. The appellate court found that the trial court properly granted summary judgment to the Board on the basis of sovereign immunity but that it erred when it granted summary judgment to the employee. The appellate court wrote that there was a material issue of fact as to whether the employee's acts were wanton and malicious. Judge Carr dissented because she found that the employee as well as the Board should have had their motions for summary judgment granted.
Vestige, Ltd. v. Mills, 2013-Ohio-2379 reversed a decision of the Medina County Common Pleas Court granting a directed verdict to the plaintiff on the defendant's counterclaim. The defendant had retained the plaintiff to perform a forensic examination of the computer belonging to the client of the defendant. The client was charged with possessing pornography involving minors on this computer. The plaintiff is a firm that offers computer forensic services. The defendant's client got convicted. The defendant believed that the plaintiff had breached its contract with the defendant by not providing its services in a competent and professional manner.
During the presentation of the counterclaim the defendant did not call an expert witness. This led to the trial court granting the plaintiff's motion for a directed verdict. The appellate court reversed the trial court on the grounds that the allegations being made by the defendant could be understood by a lay jury and no expert witness was needed.
Stanfield v. United States Steel Corp., 2013-Ohio-2378 reversed a decision from the Lorain County Common Pleas Court granting a motion for summary judgment filed by the defendant. The case involved whether the plaintiff was discharged for filing a workers' compensation claim. The Court of Appeals found that there were issues of material fact about whether the firing of the plaintiff was in retaliation for filing a workers' compensation and whether the employer's conduct was extreme and outrageous. The appellate court reversed and remanded for further proceedings.
Rodriguez v. S. Star Corp., 2013-Ohio-2377 affirmed a decision of the Medina County Common Pleas Court overruling a decision of the Unemployment Compensation Review Commission that denied unemployment benefits to the plaintiff. The plaintiff was an employee of the defendant who was assigned to work with a crew chief that had repeatedly used racial slurs around the plaintiff. The plaintiff asked to be reassigned to other crews, but the supervisor refused even though he had honored such requests in the past. The plaintiff then quit. The UCRC found that he had quit without just cause. The trial court reversed that decision and the Court of Appeals affirmed the trial court.
State v. Smetana, 2013-Ohio-2376 affirmed a decision of the Lorain County Common Pleas court that convicted the defendant of one count of sexual battery and one count of sexual imposition. The defendant appealed arguing that the trial judge had been biased against him, that his conviction was based on insufficient evidence, and that it was also against the manifest weight of the evidence. The Court of Appeals rejected all three assignments of error.
State v. Jones, 2013-Ohio-2375 reversed a decision of the Lorain County Common Pleas Court that suppressed evidence seized as the result of a traffic stop. The trial court held that the officer did not have probable cause to make a warrantless search of the trunk of the defendant's car following the stop. The State argued that the search was justified on the basis of the automobile exception to the warrant requirement. The Ohio Highway Patrol trooper who stopped the vehicle smelled an odor of marijuana. He found marijuana "shake" in the passenger compartment of the car, but believed that the shake was not the source of the odor. He searched the trunk and found more drugs, including marijuana and heroin. By a 2 to 1 vote the Court of Appeals upheld the search. The decision contains an interesting dissent by Judge Belfance in which she reviews the history of the automobile exception to the Fourth Amendment.
Wells Fargo Bank N.A. v. Horn, 2013-Ohio-2374 reversed of decision of the Lorain County Common Pleas Court that granted a summary judgment to Wells Fargo in a foreclosure action. The appellate court reversed and remanded with directions to dismiss the case without prejudice. The dismissal order was based on the recent Ohio Supreme Court case of Fed. Home Loan Mtge. Corp. v. Schwartzwald, 134 Ohio St.3d 13, 2012-Ohio-5017, ¶ 40.
Committe v. Rudolchick, 2013-Ohio-2373 reversed a decision granting a motion for summary judgment to a defendant in a negligent entrustment lawsuit. The Court of Appeals reversed because the documents cited in support of the motion were not evidentiary material required by Civ. R. 56. The Court pointed out that in the Ninth District a trial court may rely on documents that are not evidence as that term is used in Civ. R. 56. Here, though, the plaintiff objected to such documents and the trial court should not have considered them. Without the contested documents, the defendant did not establish that there was no issue of material fact.
Artim v. Lorain Cty. Bd. of Dev. Disabilities, 2013-Ohio-2372 both reversed and affirmed a decision of the Lorain County Common Pleas Court that had granted motions for summary judgment filed by the Disabilities Board and an employee of the Board. The lawsuit involved injuries received by a child of the plaintiffs' while she was undergoing therapy at a facility run by the Board. The appellate court found that the trial court properly granted summary judgment to the Board on the basis of sovereign immunity but that it erred when it granted summary judgment to the employee. The appellate court wrote that there was a material issue of fact as to whether the employee's acts were wanton and malicious. Judge Carr dissented because she found that the employee as well as the Board should have had their motions for summary judgment granted.
Monday, June 10, 2013
Ninth District Opinions Released on June 3 and June 5, 2013
The Court of Appeals for the Ninth Appellate District released two opinions from Lorain County on June 3, 2013 and four opinions from Summit County on June 5, 2013. The opinions released on June 3, 2013 were:
Wells Fargo Bank N.A. v. Horn, 2013-Ohio-2374 was a reversal of a summary judgment granted by the Lorain County Common Pleas Court. The issue in the case was whether the bank had shown that it had the right to file the lawsuit when it filed the complaint. The Court of Appeals reversed on the authority of Fed. Home Loan Mtge. Corp. v. Schwartzwald, 2012-Ohio-5017 at P40. The Court of Appeals remanded the case back to the trial court with instructions to dismiss the complaint without prejudice.
Wright v. Ohio Dept. of Job & Family Servs., 2013-Ohio-2260 affirmed a decision of the Lorain County Common Pleas Court that affirmed a decision of the Unemployment Compensation Review Commission that denied Mr. Wright unemployment compensation. The Commission found that Wright had quit his job as a truck driver without just cause when he left his truck at his employer's terminal in Seville, Ohio and told his employer he would not drive for the company if it would not give him a local route.
The opinions released on June 5, 2013 were:
State v. Novotny, 2013-Ohio-2321 affirmed a decision of the Summit County Common Pleas Court that convicted Mr. Novotny of interference with custody of a juvenile who had left her home and moved in with Mr. Novotny. Originally he was charged with unlawful sexual conduct with a minor and the interference with custody. The jury found him not guilty of the unlawful sexual conduct but guilty of the interference with custody. The Court of Appeals rejected all assignments of error raised by Mr. Notovny.
McFall v. McFall, 2013-Ohio-2320 reversed a decision of the Summit County Common Pleas Court, Domestic Relations Division. The issue on appeal was whether the trial court should have held a hearing on the wife's motion to vacate under Civ. R. 60 (B). While the majority found that the trial court should have held a hearing and found that the wife had raised the issue in a reasonable period of time, the dissent found that the issue could have been handled on a direct appeal and therefore the trial court did not have to hold a hearing on the 60 (B) motion.
State v. Harmon, 2013-Ohio-2319 affirmed a decision of the Summit County Common Pleas Court convicting Mr. Harmon of several criminal charges. In his assignments of error Mr. Harmon argued that the trial court erred in allowing evidence of battered woman's syndrome because there was no established pattern of domestic violence. The Court of Appeals rejected this argument, as well as the remaining assignments of error.
Clayton v. Walker, 2013-Ohio-2318 affirmed a decision of the Summit County Court of Common Pleas, Domestic Relations Division which had issued a temporary restraining order through a magistrate. Mr. Walker apparently filed objections to the magistrate's order in another related case. The trial court took judicial notice of those objections, considered them, and overruled them. The Court of Appeals held that the trial court could not take judicial notice of the objections filed in the other case and held that Mr. Walker had never objected in the case that was on appeal.
Since he hadn't filed objections under that case number, the appellate court held that the trial court had no authority to even consider the objections to the magistrate's order and affirmed the issuing of the order. There was a dissent by Judge Carr in which she argued that the trial court had the power to review the magistrate's decision and she believed that the appellate court could review that decision.
Wells Fargo Bank N.A. v. Horn, 2013-Ohio-2374 was a reversal of a summary judgment granted by the Lorain County Common Pleas Court. The issue in the case was whether the bank had shown that it had the right to file the lawsuit when it filed the complaint. The Court of Appeals reversed on the authority of Fed. Home Loan Mtge. Corp. v. Schwartzwald, 2012-Ohio-5017 at P40. The Court of Appeals remanded the case back to the trial court with instructions to dismiss the complaint without prejudice.
Wright v. Ohio Dept. of Job & Family Servs., 2013-Ohio-2260 affirmed a decision of the Lorain County Common Pleas Court that affirmed a decision of the Unemployment Compensation Review Commission that denied Mr. Wright unemployment compensation. The Commission found that Wright had quit his job as a truck driver without just cause when he left his truck at his employer's terminal in Seville, Ohio and told his employer he would not drive for the company if it would not give him a local route.
The opinions released on June 5, 2013 were:
State v. Novotny, 2013-Ohio-2321 affirmed a decision of the Summit County Common Pleas Court that convicted Mr. Novotny of interference with custody of a juvenile who had left her home and moved in with Mr. Novotny. Originally he was charged with unlawful sexual conduct with a minor and the interference with custody. The jury found him not guilty of the unlawful sexual conduct but guilty of the interference with custody. The Court of Appeals rejected all assignments of error raised by Mr. Notovny.
McFall v. McFall, 2013-Ohio-2320 reversed a decision of the Summit County Common Pleas Court, Domestic Relations Division. The issue on appeal was whether the trial court should have held a hearing on the wife's motion to vacate under Civ. R. 60 (B). While the majority found that the trial court should have held a hearing and found that the wife had raised the issue in a reasonable period of time, the dissent found that the issue could have been handled on a direct appeal and therefore the trial court did not have to hold a hearing on the 60 (B) motion.
State v. Harmon, 2013-Ohio-2319 affirmed a decision of the Summit County Common Pleas Court convicting Mr. Harmon of several criminal charges. In his assignments of error Mr. Harmon argued that the trial court erred in allowing evidence of battered woman's syndrome because there was no established pattern of domestic violence. The Court of Appeals rejected this argument, as well as the remaining assignments of error.
Clayton v. Walker, 2013-Ohio-2318 affirmed a decision of the Summit County Court of Common Pleas, Domestic Relations Division which had issued a temporary restraining order through a magistrate. Mr. Walker apparently filed objections to the magistrate's order in another related case. The trial court took judicial notice of those objections, considered them, and overruled them. The Court of Appeals held that the trial court could not take judicial notice of the objections filed in the other case and held that Mr. Walker had never objected in the case that was on appeal.
Since he hadn't filed objections under that case number, the appellate court held that the trial court had no authority to even consider the objections to the magistrate's order and affirmed the issuing of the order. There was a dissent by Judge Carr in which she argued that the trial court had the power to review the magistrate's decision and she believed that the appellate court could review that decision.
Hearsay & Appellate Review
Here is a link to a short video I prepared on Ohio's law on Hearsay & Appellate Review: http://youtu.be/ZwP2RAlK3Ug
Sunday, June 02, 2013
Ninth District Opinions Released on May 29, 2013
The Court of Appeals for the Ninth District released 10 decisions on May 29, 2013. All of the decisions were appeals from Summit County courts. The decisions are as follows:
State v. Stephens, 2013-Ohio-2223 was an appeal from convictions for complicity to commit aggravated murder and robbery. The most interesting issue on appeal was whether the State had violated Stephens' speedy trial rights by not trying him within 270 days. Stephens argued that the triple count provision applied since he was held in jail from the time of his arrest until the time of the trial. The Court of Appeals found that if either the triple count was applied or it wasn't the State brought him to trial within the required time. The opinion deals with the effect of a holder from another county and what happens when the holder is not entered into the record. In this case since Stephens agreed that he had a holder from Stark County and since the holder wasn't introduced into evidence, the Court of Appeals found that the holder applied for the entire period he was awaiting trial.
Spade v. Taliwal, 2013-Ohio-2177 was an appeal by the administrator of an estate for a woman who had died following surgery. On appeal the administrator argued that the trial judge had abused her discretion in refusing to give a jury instruction on concurrent negligence. A majority of the Court of Appeals agreed. There is a very interesting dissent in which the meaning of the phrase "abuse of discretion" is examined. The case was remanded for a new trial on the issue of damages.
State v. Roper, 2013-Ohio-2176 was an appeal by the State in a criminal case in which the State argued that there should have been two consecutive sentences for firearm specifications imposed and not concurrent sentences imposed. The Court of Appeals reversed because it found that while the trial court had merged offenses, the sentencing entry did not reflect that merger. The Court of Appeals went on to state that if an offense merges into another offense, then the trial court cannot impose either a concurrent or consecutive firearm specification sentence for that offense because that would be imposing a "penalty enhancement" under circumstances where no penalty can be imposed on the underlying predicate offense. In short, once an offense is merged into another offense, no penalty can be imposed for the firearm specification that was attached to the merged offense.
Rasberry v. Taylor, 2013-Ohio-2175 was an appeal from the Akron Municipal Court involving a unrepresented appellant and an appellee who was unrepresented at trial in a landlord-tenant dispute. The appellant raised issues regarding the unauthorized practice of law by the landlord and a co-owner of the property that he had rented. The Court of Appeals affirmed the trial court's award of damages as to the one owner, but not as to the other owner.
The appellate court found that the co-owner never signed the complaint but that instead it was signed by Rasberry. Since Rasberry was apparently not an attorney, he couldn't sign on behalf of his co-owner. Therefore, as to the co-owner, the complaint may not have been filed. The appellate court remanded the case to determine the ramifications, if any, from the failure of Rasberry's co-owner to sign the complaint.
Ohio Metal Servs., L.L.C. v. All-In Metals, 2013-Ohio-2174 was an appeal from a decision of the Summit County Court of Common Pleas involving a settlement agreement and proceedings to enforce that agreement. The Court of Appeals affirmed the trial court's rulings.
May v. Lubinski, 2013-Ohio-2173 was an appeal from a decision of the Summit County Common Pleas Court involving a dispute between a trust called the Silver Lakes Estates and property owners in Silver Lakes. The case in the Common Pleas Court centered on the powers of the Board of Trustees. The owners challenged the power of the Trustees to make capital improvements and mandatory assessments for such improvements and to make certain expenditures. They also claimed that the Board breached its fiduciary duties to the owners and challenged the qualifications of certain trustees to serve on the Board. The Trust also appealed from the trial court's decision.
The appellate court both affirmed and reversed parts of the trial court's opinion. The appellate court found that the trust language was unambiguous and that there was a genuine issue of material fact whether the trustees had breached their fiduciary duties. The appellate court also found that there was a genuine issue of material fact regarding the qualifications of one of the Board members to serve as trustee. The appellate court also found that the trial court's finding that a person serving as a trustee was not properly appointed was erroneous but its finding that another trustee was not properly serving was correct.
State v. Ibn-Ford, 2013-Ohio-2172 concerned an appeal from convictions for one count of rape and four counts of domestic violence. The defendant alleged several grounds of error, but the Court of Appeals only sustained one. The error sustained was whether the trial court had complied with R.C. 2947.23(A) when it imposed court costs. The appellate court found that it had not and reversed and remanded on the issue of court costs.
Fuline v. Green, 2013-Ohio-2171 was an appeal from an order of the Barberton Municipal Court ordering that the appellant, Green, pay attorney fees for proceedings following his denial of admissions. The Court of Appeals found that the matters that Green denied were at issue or were of no substantial importance, and therefore, the award of attorney fees to the plaintiffs was improper. The Court of Appeals reversed the trial court's award of attorney fees.
Budd v. Budd, 2013-Ohio-2170 was an appeal from the Summit County Court of Domestic Relations. The appellate court reversed the trial court's order regarding division of property and remanded for further proceedings. Because of its disposition on the first assignment of error, it declined to reach the other assignments of error raised by the appellant.
State v. Brooks, 2013-Ohio-2169 reversed a decision of the Summit County Common Pleas Court imposing consecutive 12 month sentences for two fifth degree felonies. The appellate court affirmed the trial court's imposition of the 12 months sentences. The reversal was because the trial court did not make the factual findings required by R.C. 2929.14(C)(4), as it was worded at the time Mr. Brooks was sentenced.
State v. Stephens, 2013-Ohio-2223 was an appeal from convictions for complicity to commit aggravated murder and robbery. The most interesting issue on appeal was whether the State had violated Stephens' speedy trial rights by not trying him within 270 days. Stephens argued that the triple count provision applied since he was held in jail from the time of his arrest until the time of the trial. The Court of Appeals found that if either the triple count was applied or it wasn't the State brought him to trial within the required time. The opinion deals with the effect of a holder from another county and what happens when the holder is not entered into the record. In this case since Stephens agreed that he had a holder from Stark County and since the holder wasn't introduced into evidence, the Court of Appeals found that the holder applied for the entire period he was awaiting trial.
Spade v. Taliwal, 2013-Ohio-2177 was an appeal by the administrator of an estate for a woman who had died following surgery. On appeal the administrator argued that the trial judge had abused her discretion in refusing to give a jury instruction on concurrent negligence. A majority of the Court of Appeals agreed. There is a very interesting dissent in which the meaning of the phrase "abuse of discretion" is examined. The case was remanded for a new trial on the issue of damages.
State v. Roper, 2013-Ohio-2176 was an appeal by the State in a criminal case in which the State argued that there should have been two consecutive sentences for firearm specifications imposed and not concurrent sentences imposed. The Court of Appeals reversed because it found that while the trial court had merged offenses, the sentencing entry did not reflect that merger. The Court of Appeals went on to state that if an offense merges into another offense, then the trial court cannot impose either a concurrent or consecutive firearm specification sentence for that offense because that would be imposing a "penalty enhancement" under circumstances where no penalty can be imposed on the underlying predicate offense. In short, once an offense is merged into another offense, no penalty can be imposed for the firearm specification that was attached to the merged offense.
Rasberry v. Taylor, 2013-Ohio-2175 was an appeal from the Akron Municipal Court involving a unrepresented appellant and an appellee who was unrepresented at trial in a landlord-tenant dispute. The appellant raised issues regarding the unauthorized practice of law by the landlord and a co-owner of the property that he had rented. The Court of Appeals affirmed the trial court's award of damages as to the one owner, but not as to the other owner.
The appellate court found that the co-owner never signed the complaint but that instead it was signed by Rasberry. Since Rasberry was apparently not an attorney, he couldn't sign on behalf of his co-owner. Therefore, as to the co-owner, the complaint may not have been filed. The appellate court remanded the case to determine the ramifications, if any, from the failure of Rasberry's co-owner to sign the complaint.
Ohio Metal Servs., L.L.C. v. All-In Metals, 2013-Ohio-2174 was an appeal from a decision of the Summit County Court of Common Pleas involving a settlement agreement and proceedings to enforce that agreement. The Court of Appeals affirmed the trial court's rulings.
May v. Lubinski, 2013-Ohio-2173 was an appeal from a decision of the Summit County Common Pleas Court involving a dispute between a trust called the Silver Lakes Estates and property owners in Silver Lakes. The case in the Common Pleas Court centered on the powers of the Board of Trustees. The owners challenged the power of the Trustees to make capital improvements and mandatory assessments for such improvements and to make certain expenditures. They also claimed that the Board breached its fiduciary duties to the owners and challenged the qualifications of certain trustees to serve on the Board. The Trust also appealed from the trial court's decision.
The appellate court both affirmed and reversed parts of the trial court's opinion. The appellate court found that the trust language was unambiguous and that there was a genuine issue of material fact whether the trustees had breached their fiduciary duties. The appellate court also found that there was a genuine issue of material fact regarding the qualifications of one of the Board members to serve as trustee. The appellate court also found that the trial court's finding that a person serving as a trustee was not properly appointed was erroneous but its finding that another trustee was not properly serving was correct.
State v. Ibn-Ford, 2013-Ohio-2172 concerned an appeal from convictions for one count of rape and four counts of domestic violence. The defendant alleged several grounds of error, but the Court of Appeals only sustained one. The error sustained was whether the trial court had complied with R.C. 2947.23(A) when it imposed court costs. The appellate court found that it had not and reversed and remanded on the issue of court costs.
Fuline v. Green, 2013-Ohio-2171 was an appeal from an order of the Barberton Municipal Court ordering that the appellant, Green, pay attorney fees for proceedings following his denial of admissions. The Court of Appeals found that the matters that Green denied were at issue or were of no substantial importance, and therefore, the award of attorney fees to the plaintiffs was improper. The Court of Appeals reversed the trial court's award of attorney fees.
Budd v. Budd, 2013-Ohio-2170 was an appeal from the Summit County Court of Domestic Relations. The appellate court reversed the trial court's order regarding division of property and remanded for further proceedings. Because of its disposition on the first assignment of error, it declined to reach the other assignments of error raised by the appellant.
State v. Brooks, 2013-Ohio-2169 reversed a decision of the Summit County Common Pleas Court imposing consecutive 12 month sentences for two fifth degree felonies. The appellate court affirmed the trial court's imposition of the 12 months sentences. The reversal was because the trial court did not make the factual findings required by R.C. 2929.14(C)(4), as it was worded at the time Mr. Brooks was sentenced.
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