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.