The Court of Appeals for the Ninth Appellate District released two opinions on July 17, 2013. My summaries of the opinions appear below.
State v. Howard, 2013-Ohio-3120 affirmed Mr. Howard's conviction by the Summit County Common Pleas Court for trafficking in heroin, a first degree felony. Mr. Howard listed one assignment of error. He argued that the trial court erred in admitting into evidence a firearm found in the purse of a co-defendant of Mr. Howard's.
The Court of Appeals noted that while Mr. Howard had objected to the introduction of the firearm, he didn't object to testimony related to the firearm. Further his attorney questioned witnesses about the firearm during the trial. Given the evidence that wasn't objected to, the Court of Appeals found that the introduction of the firearm outweighed the probative value of the firearm. It also found that even if the firearm shouldn't have been introduced its introduction was harmless error.
In its argument to the Court of Appeals the State argued that firearms found on or near the person of a drug dealer is always relevant. The Court of Appeals specifically declined to adopt such a position although it noted that there was case law from other jurisdictions adopting such a position.
State v. Armbruster, 2013-Ohio-3119 affirmed the conviction of Mr. Armbruster by the Summit County Court of Common Pleas for the illegal manufacturing of methamphetamine and forfeiture specifications connected to that charge. On appeal Mr. Armbruster argued that the trial court erred in not granting his motion to suppress evidence seized by a Norton Police Department officer from a motel room where Mr. Armbruster was cooking meth.
The evidence was seized when the officer went to the motel on a tip that Mr. Armbruster was operating a meth lab at the motel. He went up to the room and smelled the odor of cooking meth. The Court of Appeals noted that there is an exigent circumstance that allows a police officer to enter a dwelling without probable cause if he or she has a reasonable belief that a person in the dwelling is in need of immediate aid. This exception has been used to justify searches of dwellings in which there is an active meth lab because of the danger of explosion and fire that such labs pose to the occupants in the dwelling, police officers investigating the meth lab, and people who are nearby. The Court of Appeals found that this exception existed in this case.
Sunday, July 21, 2013
Ninth District Opinions Released on July 15, 2013
The Court of Appeals for the Ninth Appellate District released five opinions on July 15, 2013. My summaries of these decisions appear below.
State v. Zupancic, 2013-Ohio-3072 was an appeal of Ms. Zupancic's conviction for operating a motor vehicle while under the influence of alcohol. She listed one assignment of error. She argued that her counsel in the Wayne County Municipal Court case was ineffective. The appellate court affirmed her conviction.
Ms. Zupancic argued that her counsel was ineffective because he didn't file a motion to suppress, didn't adequately prepare to argue about mitigation at her sentencing hearing, and didn't effectively advise her during plea negotiations. The Court of Appeals noted in its opinion that to sustain Ms. Zupancic's assignment of error would require it to engage in speculation and to rely on evidence outside of the record. The Court also noted that usually the matters raised by Ms. Zupancic's appeal are addressed in a petition for post-conviction relief. Such relief, however, does not lie for municipal court proceedings.
Fannie Mae v. Trahey, 2013-Ohio-3071 was an appeal from a decision of the Lorain County Common Pleas Court granting a foreclosure and judgement on a promissory note on a motion for summary judgement. Mr. Trahey opposed the motion arguing that there was a question of material fact regarding whether Fannie Mae had standing to bring the action for foreclosure. The Court of Appeals reversed and remanded the case back to the trial court.
There were two assignments of error on appeal. One was that under the reasoning of Fed. Home Loan Mtge. Corp. v. Schwartzwald, 134 Ohio St.3d 13, 2012-Ohio-5017 Fannie Mae had to show that it had standing at the time that it filed the foreclosure action. The appellate court found that there was a material action of fact regarding this matter. The second assignment of error was rendered moot by the action on the first assignment and therefore wasn't addressed by the Court of Appeals.
King v. King, 2013-Ohio-3070 was a decision affirming the Medina County Court of Common Pleas, Domestic Relations Division denying a motion by Mr. King to remove a guardian ad litem. Applying an abuse of discretion standard on review the appellate court found that Mr. King had not shown that the guardian ad litem should be removed.
State v. Hatfield, 2013-Ohio-3069 was an appeal by the from a decision of the Lorain County Common Pleas Court dismissing the charge against Ms. Hatfield. The appeal was based on two grounds.
The first was that only a county prosecuting attorney office may establish a pre-trial diversionary program and second the way the Lorain County Common Pleas Court had structured its diversionary program violated the constitutional principle of separation of powers.
The Court of Appeals affirmed noting that there have been other appeals filed raising similar assignments of error but the record on appeal does not contain the details of the Lorain County program. The Court of Appeals noted that without such information it could not rule on the assignments of error made by the State and therefore had to affirm the trial court's dismissal of the charge.
State v. Edwards, 2013-Ohio-3068 was an appeal from a decision of the Lorain County Common Pleas Court finding Mr. Edwards guilty of gross sexual imposition. Mr. Edwards listed several assignments of error. They included that the verdict was against the manifest weight of the evidence, that the evidence was insufficient to show that he committed the offense, that the jury instructions were erroneous, and that the jury verdict forms didn't show the level of the offense or the presence of aggravating circumstances. The Court of Appeals overruled all the assignments of error and affirmed the conviction.
State v. Zupancic, 2013-Ohio-3072 was an appeal of Ms. Zupancic's conviction for operating a motor vehicle while under the influence of alcohol. She listed one assignment of error. She argued that her counsel in the Wayne County Municipal Court case was ineffective. The appellate court affirmed her conviction.
Ms. Zupancic argued that her counsel was ineffective because he didn't file a motion to suppress, didn't adequately prepare to argue about mitigation at her sentencing hearing, and didn't effectively advise her during plea negotiations. The Court of Appeals noted in its opinion that to sustain Ms. Zupancic's assignment of error would require it to engage in speculation and to rely on evidence outside of the record. The Court also noted that usually the matters raised by Ms. Zupancic's appeal are addressed in a petition for post-conviction relief. Such relief, however, does not lie for municipal court proceedings.
Fannie Mae v. Trahey, 2013-Ohio-3071 was an appeal from a decision of the Lorain County Common Pleas Court granting a foreclosure and judgement on a promissory note on a motion for summary judgement. Mr. Trahey opposed the motion arguing that there was a question of material fact regarding whether Fannie Mae had standing to bring the action for foreclosure. The Court of Appeals reversed and remanded the case back to the trial court.
There were two assignments of error on appeal. One was that under the reasoning of Fed. Home Loan Mtge. Corp. v. Schwartzwald, 134 Ohio St.3d 13, 2012-Ohio-5017 Fannie Mae had to show that it had standing at the time that it filed the foreclosure action. The appellate court found that there was a material action of fact regarding this matter. The second assignment of error was rendered moot by the action on the first assignment and therefore wasn't addressed by the Court of Appeals.
King v. King, 2013-Ohio-3070 was a decision affirming the Medina County Court of Common Pleas, Domestic Relations Division denying a motion by Mr. King to remove a guardian ad litem. Applying an abuse of discretion standard on review the appellate court found that Mr. King had not shown that the guardian ad litem should be removed.
State v. Hatfield, 2013-Ohio-3069 was an appeal by the from a decision of the Lorain County Common Pleas Court dismissing the charge against Ms. Hatfield. The appeal was based on two grounds.
The first was that only a county prosecuting attorney office may establish a pre-trial diversionary program and second the way the Lorain County Common Pleas Court had structured its diversionary program violated the constitutional principle of separation of powers.
The Court of Appeals affirmed noting that there have been other appeals filed raising similar assignments of error but the record on appeal does not contain the details of the Lorain County program. The Court of Appeals noted that without such information it could not rule on the assignments of error made by the State and therefore had to affirm the trial court's dismissal of the charge.
State v. Edwards, 2013-Ohio-3068 was an appeal from a decision of the Lorain County Common Pleas Court finding Mr. Edwards guilty of gross sexual imposition. Mr. Edwards listed several assignments of error. They included that the verdict was against the manifest weight of the evidence, that the evidence was insufficient to show that he committed the offense, that the jury instructions were erroneous, and that the jury verdict forms didn't show the level of the offense or the presence of aggravating circumstances. The Court of Appeals overruled all the assignments of error and affirmed the conviction.
Saturday, July 20, 2013
Ninth District Opinions Released July 10, 2013
On July 10, 2013 the Court of Appeals for the Ninth Appellate District released five opinions. All of the decisions were for appeals out of Summit County. My summaries of the opinions appears below:
Auto Owners Ins. Co. v. Truck Line Dispatch, Inc., 2013-Ohio-2988 was an appeal from a decision of the Akron Municipal Court appealing a judgement granted to Auto Owners Insurance Company. The issue on appeal was whether the insurance company had shown during a Civ. R. 60 (B) motion hearing that it had obtained good service on Truck Line Dispatch. The company argued that since its president had not been served with a copy of the complaint the service wasn't valid. The Court of Appeals noted, however, that a corporation may be served by delivering a copy of the complaint to its usual place of business and having a person at that location sign for the complaint. In this case that was done and therefore the Court found that the Rule 60 (B) motion should not have been granted.
D.R. v. J.R., 2013-Ohio-2987 was an appeal from the granting of a protection order by the Summit County Domestic Relations Court. The issues on appeal was whether the trial court had deprived J.R. of due process by not timely ruling on objections to a magistrate's decision and then finding that the magistrate's decision was moot because the protection order had expired.
The order was issued on October 28, 2011. J.R. through his attorney filed objections to the decision on November 7, 2011 and also filed a praecipe for a transcript of the proceedings with the court reporter. The transcript was not filed until June 26, 2012. J.R. through his attorney then filed supplemental objections on July 6, 2012. On December 6, 2012 the trial court dismissed the objections as moot since the order expired under its own terms on October 25, 2012.
The Court of Appeals found that since there are collateral consequences to the issuance of a protection order the fact that the order had expired was not determinative. It held that the trial court had a duty to hold a hearing on the objections to determine whether the order was properly granted. The case was then remanded back to the trial court for a hearing on the objections.
State v Jones, 2013-Ohio-2986 was an appeal from the Summit County Common Pleas Court's order that Mr. Jones was entitled to a new trial. The appeal was filed by the State. The basis for the order was the results of new DNA testing that was done on articles of evidence introduced at trial. The Court of Appeals agreed with the trial court that the newly discovered evidence raised the issue of whether the State could meet its burden of proof at trial. The appellate court affirmed the decision of the trial court.
State v. Jeffery, 2013-Ohio-2985 was an appeal from a decision of the Summit County Common Pleas Court denying Mr. Jeffery's motion to withdraw his plea. At the hearing on the motion Mr. Jeffery testified that he was distraught because of the funeral of his sister and having to make arrangements for the funeral of his daughter who had also died. The Court of Appeals found that the trial court had misunderstood Mr. Jeffery's testimony on these issues and remanded the case for further consideration of Mr. Jeffery's motion.
State v. Clark, 2013-Ohio-2984 was an appeal from a decision of the Summit County Common Pleas Court finding Mr. Clark guilty of community control sanction violations, ordering him to pay attorney fees, and not calculating how many days of jail credit he had. The Court of Appeals agreed with Mr. Clark that the trial court erred by not including in its sentencing entry the number of jail credit days he was entitled to receive against his prison sentence. It also found that the trial court erred in ordering him to pay the reasonable attorney fees incurred by his court-appointed counsel without holding a hearing to see if he had the ability to pay the attorney fees.
Auto Owners Ins. Co. v. Truck Line Dispatch, Inc., 2013-Ohio-2988 was an appeal from a decision of the Akron Municipal Court appealing a judgement granted to Auto Owners Insurance Company. The issue on appeal was whether the insurance company had shown during a Civ. R. 60 (B) motion hearing that it had obtained good service on Truck Line Dispatch. The company argued that since its president had not been served with a copy of the complaint the service wasn't valid. The Court of Appeals noted, however, that a corporation may be served by delivering a copy of the complaint to its usual place of business and having a person at that location sign for the complaint. In this case that was done and therefore the Court found that the Rule 60 (B) motion should not have been granted.
D.R. v. J.R., 2013-Ohio-2987 was an appeal from the granting of a protection order by the Summit County Domestic Relations Court. The issues on appeal was whether the trial court had deprived J.R. of due process by not timely ruling on objections to a magistrate's decision and then finding that the magistrate's decision was moot because the protection order had expired.
The order was issued on October 28, 2011. J.R. through his attorney filed objections to the decision on November 7, 2011 and also filed a praecipe for a transcript of the proceedings with the court reporter. The transcript was not filed until June 26, 2012. J.R. through his attorney then filed supplemental objections on July 6, 2012. On December 6, 2012 the trial court dismissed the objections as moot since the order expired under its own terms on October 25, 2012.
The Court of Appeals found that since there are collateral consequences to the issuance of a protection order the fact that the order had expired was not determinative. It held that the trial court had a duty to hold a hearing on the objections to determine whether the order was properly granted. The case was then remanded back to the trial court for a hearing on the objections.
State v Jones, 2013-Ohio-2986 was an appeal from the Summit County Common Pleas Court's order that Mr. Jones was entitled to a new trial. The appeal was filed by the State. The basis for the order was the results of new DNA testing that was done on articles of evidence introduced at trial. The Court of Appeals agreed with the trial court that the newly discovered evidence raised the issue of whether the State could meet its burden of proof at trial. The appellate court affirmed the decision of the trial court.
State v. Jeffery, 2013-Ohio-2985 was an appeal from a decision of the Summit County Common Pleas Court denying Mr. Jeffery's motion to withdraw his plea. At the hearing on the motion Mr. Jeffery testified that he was distraught because of the funeral of his sister and having to make arrangements for the funeral of his daughter who had also died. The Court of Appeals found that the trial court had misunderstood Mr. Jeffery's testimony on these issues and remanded the case for further consideration of Mr. Jeffery's motion.
State v. Clark, 2013-Ohio-2984 was an appeal from a decision of the Summit County Common Pleas Court finding Mr. Clark guilty of community control sanction violations, ordering him to pay attorney fees, and not calculating how many days of jail credit he had. The Court of Appeals agreed with Mr. Clark that the trial court erred by not including in its sentencing entry the number of jail credit days he was entitled to receive against his prison sentence. It also found that the trial court erred in ordering him to pay the reasonable attorney fees incurred by his court-appointed counsel without holding a hearing to see if he had the ability to pay the attorney fees.
Ninth District Opinions Released July 8, 2013
On July 8, 2013, the Court of Appeals for the Ninth Appellate District released two opinions. One concerned a criminal case and the other concerned a civil case. My summaries of the decisions appear below:
Matheny v. Matheny, 2013-Ohio-2946 was an appeal from a domestic relations case out of the Wayne County Common Pleas Court. At issue was the interpretation of a separation agreement entered into by the Mathenys who were acting pro se. There were two versions of the separation agreement. On the first version the parties agreed to split one half of the proceeds from the sale of the marital residence. On the second version they agreed to split one half of the profit from the sale of the residence. (The reason that there were two versions was that when they filed the first agreement along with their dissolution petition they had not filled out the part of the pre-printed form dealing with child support.)
When the house was sold, it was sold for less than the price that the Mathenys paid when they bought the home. The magistrate reasoned that profit was the moneys received over the cost of an item and therefore there was no "profit" on the sale of the home. The Court of Appeals reversed and remanded the case for further proceedings. The appellate court found that the term "profit" and its use was ambiguous. In part of the separation agreement they referred to the home having a mortgage and in another part they referred to the cost of construction. While the appellate court found the magistrate's reasoning reasonable it also found that the two references made the term "profit" ambiguous. It then remanded for the trial court to take extrinsic evidence.
State v. Brown, 2013-Ohio-2945 was a criminal case also from Wayne County. Mr. Brown appealed his conviction for aggravated murder. He listed several assignments of error. Mr. Brown argued that his convictions were against the manifest weight of the evidence and that the State had not sustained its burden of proof. The appellate court overruled those assignments of error. He also argued that the trial court had committed reversible error during the reading of the jury instructions and during a curative instruction in which the trial court mentioned the possibility of an appeal. This assignment was also overruled. The Court of Appeals did, however, find that the trial court improperly imposed post-release control on the charge of aggravated murder. That charge was an unclassified felony and therefore not subject to post-release control. The appellate court remanded for the trial court to hold another sentencing hearing without imposing post-release control on that charge.
Matheny v. Matheny, 2013-Ohio-2946 was an appeal from a domestic relations case out of the Wayne County Common Pleas Court. At issue was the interpretation of a separation agreement entered into by the Mathenys who were acting pro se. There were two versions of the separation agreement. On the first version the parties agreed to split one half of the proceeds from the sale of the marital residence. On the second version they agreed to split one half of the profit from the sale of the residence. (The reason that there were two versions was that when they filed the first agreement along with their dissolution petition they had not filled out the part of the pre-printed form dealing with child support.)
When the house was sold, it was sold for less than the price that the Mathenys paid when they bought the home. The magistrate reasoned that profit was the moneys received over the cost of an item and therefore there was no "profit" on the sale of the home. The Court of Appeals reversed and remanded the case for further proceedings. The appellate court found that the term "profit" and its use was ambiguous. In part of the separation agreement they referred to the home having a mortgage and in another part they referred to the cost of construction. While the appellate court found the magistrate's reasoning reasonable it also found that the two references made the term "profit" ambiguous. It then remanded for the trial court to take extrinsic evidence.
State v. Brown, 2013-Ohio-2945 was a criminal case also from Wayne County. Mr. Brown appealed his conviction for aggravated murder. He listed several assignments of error. Mr. Brown argued that his convictions were against the manifest weight of the evidence and that the State had not sustained its burden of proof. The appellate court overruled those assignments of error. He also argued that the trial court had committed reversible error during the reading of the jury instructions and during a curative instruction in which the trial court mentioned the possibility of an appeal. This assignment was also overruled. The Court of Appeals did, however, find that the trial court improperly imposed post-release control on the charge of aggravated murder. That charge was an unclassified felony and therefore not subject to post-release control. The appellate court remanded for the trial court to hold another sentencing hearing without imposing post-release control on that charge.
Monday, July 08, 2013
Ninth District Opinions for Summit County Released on June 28, 2013
The Ninth District Court of Appeals released 10 decisions on June 28, 2013 that were decisions from appeals out of Summit County. My summaries of the opinions appear below.
In re L.C., 2013-Ohio-2799 was a case out of the Summit County Juvenile Court in which the Court of Appeals affirmed the decision of the trial court to terminate the parental rights of L.C.'s mother. The mother appealed on one assignment of error that the decision was against the manifest weight of the evidence.
State v. Henderson, 2013-Ohio-2798 was a case out of the Summit County Common Pleas Court. Ms. Henderson appealed from the trial court's order that she make restitution in the amount of $12,000, which was for jewelry that Ms. Henderson had taken from elderly people. The sole assignment of error was that the trial court erred in not complying with R.C. 2929.18(A)(1). That Revised Code section requires that there be a hearing before a trial court orders restitution. In this case the appellate court found that no such hearing was held and reversed the decision and remanded for further proceedings.
State v. Kracker, 2013-Ohio-2795 was an appeal from Mr. Kracker's conviction in the Summit County Common Pleas Court. Mr, Kracker appealed on a sole assignment of error. The assignment was that the trial court erred in allowing the State to introduce "other acts" evidence. The evidence consisted of Mr. Kracker's convictions for manufacturing meth. While the Court of Appeals agreed in part with Mr. Kracker's argument, it found that the admission of the evidence was harmless in view of the "overwhelming evidence" of Mr. Kracker's guilty. Therefore Mr. Kracker's conviction was affirmed.
State v. Hulgin, 2013-Ohio-2794 was an appeal from a decision of the Akron Municipal Court denying Mr. Hulgin's motion for relief from judgment under Civ. R. 60 (B). Mr. Hulgin was sued by the State for unpaid University of Akron tuition and fees for the 2002 spring semester. The trial court granted the State's motion for a default judgment. When the State attempted to garnish his wages, he filed the Civ. R. 60 (B) motion.
The State agreed that Mr. Hulgin alleged a meritorious defense and that he also that the motion was timely filed. The issue in the case was whether he showed "excusable neglect" in not responding to the State's lawsuit. While the trial court found that Mr. Hulgin had not shown "excusable neglect", the Court of Appeals disagreed and reversed the judgment of the Akron Municipal Court.
Granger v. Auto Owners Ins., 2013-Ohio-2792 was an appeal from a decision from the Summit County Court of Common Pleas granting a motion for summary judgment filed by Auto Owners Insurance and other defendants. The issue in the lawsuit with Mr. Granger and another plaintiff was whether Auto Owners had a duty to provide a defense to a housing discrimination lawsuit filed against the plaintiffs in Federal Court because of an umbrella policy issued by Auto Owners to Mr. Granger.
The Court of Appeals found that it had such a duty since the duty to defend is greater than the duty to indemnify and since the allegations of the plaintiff in the Federal Court action included emotional distress. The appellate court found that the action for emotional distress could be construed as an action for personal injury. The policy expressly covered such actions. Therefore the summary judgment granted to the defendants was reversed.
First Data Merchant Servs. Corp. v. Wright, 2013-Ohio-2791 was an appeal from a decision of the Akron Municipal Court granting a judgment to First Data. The grounds for the appeal were that the trial court didn't have jurisdiction because service of the complaint was never obtained.
Mr. Wright filed a motion to set aside the judgment. He attached a copy of his affidavit to the motion stating that he never had been served with the complaint. First Data did not file a counter-affidavit, nor did it request a hearing on the motion. The following is a quote from the opinion: “‘It is reversible error for a trial court to disregard the unchallenged testimony that a person did not receive service.’” Wood, 2010-Ohio-1339, at ¶ 12, quoting Jacobs, 2006-Ohio-1312, at ¶ 17." Therefore the appellate court found that Mr. Wright had not been served and that the judgment was void ab initio. The trial court's judgment was reversed.
Cooper v. BASF, Inc., 2013-Ohio-2790 was an appeal from a decision of the Summit County Common Pleas Court granting a motion for summary judgment in a lawsuit alleging a toxic tort. The plaintiffs appealed on the grounds that the trial court did not consider the affidavit of their alleged expert and that the trial court erred in not granting their motion to strike a reply brief of the defendants. The Court of Appeals found that the affidavit of the expert did not comply with Evid. R. 702. The Court of Appeals also found that the trial court did not abuse its discretion in refusing to strike the reply brief. Therefore the trial court's judgment was affirmed.
State v. Caynon, 2013-Ohio-2789 was an appeal from a decision of the Summit County Common Pleas Court. The issue on appeal was whether the trial court erred in not granting a motion to suppress evidence. The basis of the motion was that the police violated Ms. Caynon's rights by not having a sufficient basis to stop her car and by searching her car and her person after the traffic stop. The appellate court found that the trial court's denial of the motion to suppress was proper and affirmed Ms. Caynon's conviction.
State v. Browning, 2013-Ohio-2787 was an appeal from Mr. Browning's conviction for domestic violence following a jury trial. Mr. Browning alleged several assignments of error in his appeal. They included that his conviction was based on insufficient evidence, that it was against the manifest weight of the evidence, and that the trial court erred in admitting a tape of a 9-1-1 call made by his wife, who was the victim. Those assignments of error were overruled. The Court of Appeals, however, did sustain his assignment of error that the trial court erred in assessing court costs without complying with the notice requirements of former R.C. 2947.23(A). Therefore the case was remanded so that the trial court could comply with that Revised Code section.
State v. Anderson, 2013-Ohio-2786 was an appeal from a decision of the Summit County Common Pleas Court convicting Ms. Anderson of aggravated possession of drugs and operating under the influence. The basis of the appeal was that her trial counsel was ineffective. The Court of Appeals found that the appeal was not well taken and affirmed her conviction.
In re L.C., 2013-Ohio-2799 was a case out of the Summit County Juvenile Court in which the Court of Appeals affirmed the decision of the trial court to terminate the parental rights of L.C.'s mother. The mother appealed on one assignment of error that the decision was against the manifest weight of the evidence.
State v. Henderson, 2013-Ohio-2798 was a case out of the Summit County Common Pleas Court. Ms. Henderson appealed from the trial court's order that she make restitution in the amount of $12,000, which was for jewelry that Ms. Henderson had taken from elderly people. The sole assignment of error was that the trial court erred in not complying with R.C. 2929.18(A)(1). That Revised Code section requires that there be a hearing before a trial court orders restitution. In this case the appellate court found that no such hearing was held and reversed the decision and remanded for further proceedings.
State v. Kracker, 2013-Ohio-2795 was an appeal from Mr. Kracker's conviction in the Summit County Common Pleas Court. Mr, Kracker appealed on a sole assignment of error. The assignment was that the trial court erred in allowing the State to introduce "other acts" evidence. The evidence consisted of Mr. Kracker's convictions for manufacturing meth. While the Court of Appeals agreed in part with Mr. Kracker's argument, it found that the admission of the evidence was harmless in view of the "overwhelming evidence" of Mr. Kracker's guilty. Therefore Mr. Kracker's conviction was affirmed.
State v. Hulgin, 2013-Ohio-2794 was an appeal from a decision of the Akron Municipal Court denying Mr. Hulgin's motion for relief from judgment under Civ. R. 60 (B). Mr. Hulgin was sued by the State for unpaid University of Akron tuition and fees for the 2002 spring semester. The trial court granted the State's motion for a default judgment. When the State attempted to garnish his wages, he filed the Civ. R. 60 (B) motion.
The State agreed that Mr. Hulgin alleged a meritorious defense and that he also that the motion was timely filed. The issue in the case was whether he showed "excusable neglect" in not responding to the State's lawsuit. While the trial court found that Mr. Hulgin had not shown "excusable neglect", the Court of Appeals disagreed and reversed the judgment of the Akron Municipal Court.
Granger v. Auto Owners Ins., 2013-Ohio-2792 was an appeal from a decision from the Summit County Court of Common Pleas granting a motion for summary judgment filed by Auto Owners Insurance and other defendants. The issue in the lawsuit with Mr. Granger and another plaintiff was whether Auto Owners had a duty to provide a defense to a housing discrimination lawsuit filed against the plaintiffs in Federal Court because of an umbrella policy issued by Auto Owners to Mr. Granger.
The Court of Appeals found that it had such a duty since the duty to defend is greater than the duty to indemnify and since the allegations of the plaintiff in the Federal Court action included emotional distress. The appellate court found that the action for emotional distress could be construed as an action for personal injury. The policy expressly covered such actions. Therefore the summary judgment granted to the defendants was reversed.
First Data Merchant Servs. Corp. v. Wright, 2013-Ohio-2791 was an appeal from a decision of the Akron Municipal Court granting a judgment to First Data. The grounds for the appeal were that the trial court didn't have jurisdiction because service of the complaint was never obtained.
Mr. Wright filed a motion to set aside the judgment. He attached a copy of his affidavit to the motion stating that he never had been served with the complaint. First Data did not file a counter-affidavit, nor did it request a hearing on the motion. The following is a quote from the opinion: “‘It is reversible error for a trial court to disregard the unchallenged testimony that a person did not receive service.’” Wood, 2010-Ohio-1339, at ¶ 12, quoting Jacobs, 2006-Ohio-1312, at ¶ 17." Therefore the appellate court found that Mr. Wright had not been served and that the judgment was void ab initio. The trial court's judgment was reversed.
Cooper v. BASF, Inc., 2013-Ohio-2790 was an appeal from a decision of the Summit County Common Pleas Court granting a motion for summary judgment in a lawsuit alleging a toxic tort. The plaintiffs appealed on the grounds that the trial court did not consider the affidavit of their alleged expert and that the trial court erred in not granting their motion to strike a reply brief of the defendants. The Court of Appeals found that the affidavit of the expert did not comply with Evid. R. 702. The Court of Appeals also found that the trial court did not abuse its discretion in refusing to strike the reply brief. Therefore the trial court's judgment was affirmed.
State v. Caynon, 2013-Ohio-2789 was an appeal from a decision of the Summit County Common Pleas Court. The issue on appeal was whether the trial court erred in not granting a motion to suppress evidence. The basis of the motion was that the police violated Ms. Caynon's rights by not having a sufficient basis to stop her car and by searching her car and her person after the traffic stop. The appellate court found that the trial court's denial of the motion to suppress was proper and affirmed Ms. Caynon's conviction.
State v. Browning, 2013-Ohio-2787 was an appeal from Mr. Browning's conviction for domestic violence following a jury trial. Mr. Browning alleged several assignments of error in his appeal. They included that his conviction was based on insufficient evidence, that it was against the manifest weight of the evidence, and that the trial court erred in admitting a tape of a 9-1-1 call made by his wife, who was the victim. Those assignments of error were overruled. The Court of Appeals, however, did sustain his assignment of error that the trial court erred in assessing court costs without complying with the notice requirements of former R.C. 2947.23(A). Therefore the case was remanded so that the trial court could comply with that Revised Code section.
State v. Anderson, 2013-Ohio-2786 was an appeal from a decision of the Summit County Common Pleas Court convicting Ms. Anderson of aggravated possession of drugs and operating under the influence. The basis of the appeal was that her trial counsel was ineffective. The Court of Appeals found that the appeal was not well taken and affirmed her conviction.
Sunday, July 07, 2013
Ninth District Opinions for Wayne County Released on June 28, 2013
The Court of Appeals for the Ninth Appellate District released opinions for three Wayne County appeals on June 28, 2013. My summaries of the decisions appear below.
Stephens v. Stephens, 2013-Ohio-2797 was an appeal from a divorce decree issued by the Wayne County Court of Appeals. The Court of Appeals reversed the decision of the Wayne County Common Pleas Court and remanded for further proceedings. The issue was whether Mrs. Stephens was denied a fair trial because the proceedings were held while she was incarcerated and the Common Pleas Court did not provide her with a court-appointed attorney to represent her at the hearing nor was there any provision made for her to appear at the hearing.
The Court of Appeals started its analysis with the observation that "generally prisoners have no constitutional right to be personally present at
any stage of * * * civil proceedings", quoting from Carrion v. Carrion (9th. Dist), 2007-Ohio-6142. The Court noted, however, that under Carrion a trial court is required to engage in an analysis of nine factors as to whether this general rule should or should not be observed. Since there was no indication that the trial court engaged in such analysis, the decision was reversed and remanded for further proceedings.
State v. Maynard, 2013-Ohio-2796 was an appeal from a criminal case heard in the Wayne County Common Pleas Court. The Court of Appeals affirmed. Mr. Maynard appealed on three issues. The first was that his conviction was against the manifest weight of the evidence. The second was that he was denied due process because the State didn't put him on notice it was seeking a conviction on the lesser included offense of attempt. The third was that the trial court applied the attempt statute in such a way as to allow his conviction on a lesser degree of culpability than constitutionally required.
In rejecting all three assignments of error the appellate court noted that there are three types of lesser included offenses. They are attempts, lesser degrees of the indicted offense, and lesser included offenses that are committed when committing or attempting to convict the indicted offense. An example of lesser degree of an indicted offense would be where the State charged a person with a felony theft, but couldn't prove the value was $1,000.00. An example of the third type would be where the State charged a person with assault but could only prove disorderly conduct.
Honabarger v. Wayne Sav. Community Bank, 2013-Ohio-2793 was an appeal from the granting of a motion for summary judgment on the issue of liability in a slip and fall case. The Court of Appeals reversed on the sole assignment of error that there were material issues of fact and therefore summary judgement was inappropriate. In reversing the trial court the appellate court noted that while there was a reference to photographs in the trial court's opinion, the only photographs that were in the record were photographs attached to the defendant's motion. Photographs shown to the plaintiff at his deposition were not included with the deposition when it was filed.
Stephens v. Stephens, 2013-Ohio-2797 was an appeal from a divorce decree issued by the Wayne County Court of Appeals. The Court of Appeals reversed the decision of the Wayne County Common Pleas Court and remanded for further proceedings. The issue was whether Mrs. Stephens was denied a fair trial because the proceedings were held while she was incarcerated and the Common Pleas Court did not provide her with a court-appointed attorney to represent her at the hearing nor was there any provision made for her to appear at the hearing.
The Court of Appeals started its analysis with the observation that "generally prisoners have no constitutional right to be personally present at
any stage of * * * civil proceedings", quoting from Carrion v. Carrion (9th. Dist), 2007-Ohio-6142. The Court noted, however, that under Carrion a trial court is required to engage in an analysis of nine factors as to whether this general rule should or should not be observed. Since there was no indication that the trial court engaged in such analysis, the decision was reversed and remanded for further proceedings.
State v. Maynard, 2013-Ohio-2796 was an appeal from a criminal case heard in the Wayne County Common Pleas Court. The Court of Appeals affirmed. Mr. Maynard appealed on three issues. The first was that his conviction was against the manifest weight of the evidence. The second was that he was denied due process because the State didn't put him on notice it was seeking a conviction on the lesser included offense of attempt. The third was that the trial court applied the attempt statute in such a way as to allow his conviction on a lesser degree of culpability than constitutionally required.
In rejecting all three assignments of error the appellate court noted that there are three types of lesser included offenses. They are attempts, lesser degrees of the indicted offense, and lesser included offenses that are committed when committing or attempting to convict the indicted offense. An example of lesser degree of an indicted offense would be where the State charged a person with a felony theft, but couldn't prove the value was $1,000.00. An example of the third type would be where the State charged a person with assault but could only prove disorderly conduct.
Honabarger v. Wayne Sav. Community Bank, 2013-Ohio-2793 was an appeal from the granting of a motion for summary judgment on the issue of liability in a slip and fall case. The Court of Appeals reversed on the sole assignment of error that there were material issues of fact and therefore summary judgement was inappropriate. In reversing the trial court the appellate court noted that while there was a reference to photographs in the trial court's opinion, the only photographs that were in the record were photographs attached to the defendant's motion. Photographs shown to the plaintiff at his deposition were not included with the deposition when it was filed.
Saturday, July 06, 2013
Ninth District Opinions for Lorain County Released on June 28, 2013
The Court of Appeals for the Ninth Appellate District released two decisions from Lorain County appeals on June 28, 2013. My summaries of these decisions appear below.
State v. Carlton, 2013-Ohio-2788 was a criminal appeal in which the trial court was affirmed. Mr. Carlton cited five assignments of error on appeal.
Mr. Carlton argued that the prosecutor's remarks during opening statement were a misstatement of the law and that even though his lawyer didn't object, the trial court committed plain error in not correcting the assistant prosecutor trying the case.
He also argued that his conviction was against the manifest weight of the evidence and that his motion under Crim. R. 28 should have been granted because the state failed to produce sufficient evidence in its case in chief.
He argued that the trial court erred in allowing in other acts evidence and that the trial court erred in its instructions by not requiring unanimity in the jury's verdicts. That assignment of error relied on an argument that the State had charged him with "multiple acts" while the State argued that it had charged him with "alternative means" of committing the crimes. The Court agreed with the State that the correct analysis was an "alternative means" analysis and not a "multiple acts" analysis. Judge Hensal's decision contains case citations from the Ohio Supreme Court on the "alternative means" versus "multiple acts" analysis and what each analysis requires.
Altercare, Inc. v. Clark, 2013-Ohio-2785 is a case in which both Altercare, inc. and its former employee, Clark, filed appeals from a decision of the Lorain County Common Pleas Court regarding the issue of spoliation of evidence.
Altercare had sued Clark for various causes of action related to her employment as its CEO and Clark had counterclaimed. Before litigation Clark's attorney had sent a letter to Altercare regarding a computer that Clark had used during her employment. Clark's attorney wanted the computer preserved or a mirror image made of its hard drive. During discovery it became apparent that Altercare had not preserved the computer's hard drive or made a mirror image of the hard drive.
The trial court sanctioned Altercare for this spoliation of evidence by dismissing all of its counts against Clark. It did not, however, grant Clark's request for judgment on her counterclaim. Altercare appealed and Clark cross-appealed. Clark, however, failed to submit a merit brief in support of her cross-appeal, so it was dismissed. The Court then affirmed the trial court's decisions regarding the dismissal of the Altercare complaint.
Judge Whitmore's opinion refers to the provision of Civ. R. 37 which concerns the preservation of electronically stored information, (ESI), and the factors that a trial court should consider when deciding to sanction a party for non-compliance.
State v. Carlton, 2013-Ohio-2788 was a criminal appeal in which the trial court was affirmed. Mr. Carlton cited five assignments of error on appeal.
Mr. Carlton argued that the prosecutor's remarks during opening statement were a misstatement of the law and that even though his lawyer didn't object, the trial court committed plain error in not correcting the assistant prosecutor trying the case.
He also argued that his conviction was against the manifest weight of the evidence and that his motion under Crim. R. 28 should have been granted because the state failed to produce sufficient evidence in its case in chief.
He argued that the trial court erred in allowing in other acts evidence and that the trial court erred in its instructions by not requiring unanimity in the jury's verdicts. That assignment of error relied on an argument that the State had charged him with "multiple acts" while the State argued that it had charged him with "alternative means" of committing the crimes. The Court agreed with the State that the correct analysis was an "alternative means" analysis and not a "multiple acts" analysis. Judge Hensal's decision contains case citations from the Ohio Supreme Court on the "alternative means" versus "multiple acts" analysis and what each analysis requires.
Altercare, Inc. v. Clark, 2013-Ohio-2785 is a case in which both Altercare, inc. and its former employee, Clark, filed appeals from a decision of the Lorain County Common Pleas Court regarding the issue of spoliation of evidence.
Altercare had sued Clark for various causes of action related to her employment as its CEO and Clark had counterclaimed. Before litigation Clark's attorney had sent a letter to Altercare regarding a computer that Clark had used during her employment. Clark's attorney wanted the computer preserved or a mirror image made of its hard drive. During discovery it became apparent that Altercare had not preserved the computer's hard drive or made a mirror image of the hard drive.
The trial court sanctioned Altercare for this spoliation of evidence by dismissing all of its counts against Clark. It did not, however, grant Clark's request for judgment on her counterclaim. Altercare appealed and Clark cross-appealed. Clark, however, failed to submit a merit brief in support of her cross-appeal, so it was dismissed. The Court then affirmed the trial court's decisions regarding the dismissal of the Altercare complaint.
Judge Whitmore's opinion refers to the provision of Civ. R. 37 which concerns the preservation of electronically stored information, (ESI), and the factors that a trial court should consider when deciding to sanction a party for non-compliance.
Monday, July 01, 2013
Ninth District Opinions Released June 26, 2013
The Court of Appeals for the Ninth Appellate District released 10 opinions on June 26, 2013. All of the decisions were for appeals from Summit County. My summaries of the opinions appear below.
State v. Weems, 2013-Ohio-2673 was a decision from the Summit County Court of Common Pleas. Mr. Weems challenged the severity of his sentence. He alleged that his sentence was more severe than that given to a co-defendant even though his involvement in the crime was less. The Court of Appeals affirmed the decision of the trial court because Mr. Deems did not provide either the transcript of the proceedings from his co-defendant's case nor the presentence investigation. Consequently the appellate court had nothing in the record to compare his sentence to and therefore it had to affirm the trial court's decision.
State v. Sanders, 2013-Ohio-2672 was an appeal from the Summit County Common Pleas Court. Mr. Sanders was convicted of various felonies. He appealed challenging the legality of a search of his residence and also the fact that the trial court had kept the affidavit for the search warrant under seal and that the affidavit was insufficient to establish probable cause.
He challenged the fact that a visiting municipal court judge who was assigned by the Ohio Supreme Court's Chief Justice to serve on the Akron Municipal Court. His argument was that none of the six Judges on the Municipal Court had requested a visiting judge on the day that the warrant was issued, hence there was no authority for a visiting judge to act. The Court of Appeals rejected this argument noting that while the record was unclear about why the Chief Justice had appointed a visiting judge, the authority of the Chief Justice to appoint visiting judges is such that an appointment of a visiting judge does not depend on a request. Therefore that assignment of error was overruled.
With respect to the affidavit the Court of Appeals examined it under seal and concluded that it was sufficient to justify the existence of a search warrant. Since it found that it was sufficient the other argument concerning the sealing of the warrant was rendered moot.
Akron v. Prince, 2013-Ohio-2671 was an appeal from the defendant's conviction in the Akron Municipal Court. The Court of Appeals reversed the conviction and remanded the case for further proceedings. Ms. Prince raised two assignments of error on appeal. The appellate court consolidated them for purposes of its decision.
Since Ms. Prince was representing herself, the Court of Appeals had some difficulty with the issues she was raising on appeal. The Court wrote that her complaints were that she was not given all the documents she should have been given prior to trial through discovery and that the trial court considered matters outside of the evidence presented at trial. The Court of Appeals found that the trial court had considered matters outside of the evidence introduced at trial and therefore Ms. Prince's due process rights were violated.
State v. Kosturko, 2013-Ohio-2670 was an appeal from a decision of the Summit County Common Pleas Court. Appellate counsel informed the appellate court that she had reviewed the transcript of the proceedings below and there were no grounds for an appeal. This representation was based on the United States Supreme Court decision of Anders v. California, 386
U.S. 738 (1967). The Court of Appeals gave the defendant an opportunity to respond, no response was made, and so the case was dismissed.
In re L.M., 2013-Ohio-2669 was an appeal from a decision of the Summit County Juvenile Court terminating the parental rights of a mother and awarding temporary custody of the child to the Summit County Children Services' Bureau. The Court affirmed the termination order.
The mother filed two assignments of error. One was that the trial court erred in not allowing the mother an additional six months of custody in order to complete her case plan objectives. The other was that the trial court erred in not appointing a guardian ad litem for the child. The Court of Appeals overruled both assignments of error.
State v. Hume, 2013-Ohio-2668 was an appeal from a decision of the Summit County Common Pleas Court. The Court of Appeals reversed in part and affirmed in part and remanded. The Court of Appeals sustained the assignment of error that claimed the trial court erred when it ordered restitution over the objection of defense counsel without a hearing. The Court overruled the assignment of error that claimed the trial court erred when it imposed the maximum sentence of three years in prison and a lifetime revocation of the defendant's driver's license.
State v. Griffin, 2013-Ohio-2667 affirmed a decision from the Summit County Common Pleas Court. Mr. Griffin listed three assignments of error. The first assignment of error was that the trial court erred when it reimposed post-release control following a hearing. The second was that the trial court should erred in stating that it had no authority to do other than reimpose the original sentence. The third was that Mr. Griffin had inadequate representation. All three assignments of error were overruled.
Flagstar Bank, FSB v. Harvey, 2013-Ohio-2666 reversed a decision from the Summit County Common Pleas Court granting a foreclosure to Flagstar Bank. Based on the Ohio Supreme Court decision of Fed. Home Loan Mtge. Corp. v. Schwartzwald, 134 Ohio St.3d 13, 2012-Ohio-5017, it found that it was not established that the Bank was the real party in interest at the time of the filing of the lawsuit. It therefore reversed and remanded. Since it had reversed and remanded on that assignment of error, the other two assignments of error were moot.
State v. Brown, 2013-Ohio-2665 reversed Mr. Brown's conviction on the grounds that the manifest weight of the evidence didn't support his conviction. The Court of Appeals found that there was sufficient evidence of his guilt to justify the case going to the jury, but that the manifest weight of the evidence did not support his conviction. Since the Court of Appeals reversed and remanded on that assignment of error, it did not reach the second assignment of error which was that the trial court erred in admitting other acts evidence.
State v. Boone, 2013-Ohio-2664 reversed and remanded Mr. Boone's conviction because the trial court failed to comply with two provisions of the Ohio Revised Code regarding the imposition of court costs and the imposition of repayment of assigned counsel fees. The case was remanded back to the Summit County Common Pleas Court for further proceedings.
State v. Weems, 2013-Ohio-2673 was a decision from the Summit County Court of Common Pleas. Mr. Weems challenged the severity of his sentence. He alleged that his sentence was more severe than that given to a co-defendant even though his involvement in the crime was less. The Court of Appeals affirmed the decision of the trial court because Mr. Deems did not provide either the transcript of the proceedings from his co-defendant's case nor the presentence investigation. Consequently the appellate court had nothing in the record to compare his sentence to and therefore it had to affirm the trial court's decision.
State v. Sanders, 2013-Ohio-2672 was an appeal from the Summit County Common Pleas Court. Mr. Sanders was convicted of various felonies. He appealed challenging the legality of a search of his residence and also the fact that the trial court had kept the affidavit for the search warrant under seal and that the affidavit was insufficient to establish probable cause.
He challenged the fact that a visiting municipal court judge who was assigned by the Ohio Supreme Court's Chief Justice to serve on the Akron Municipal Court. His argument was that none of the six Judges on the Municipal Court had requested a visiting judge on the day that the warrant was issued, hence there was no authority for a visiting judge to act. The Court of Appeals rejected this argument noting that while the record was unclear about why the Chief Justice had appointed a visiting judge, the authority of the Chief Justice to appoint visiting judges is such that an appointment of a visiting judge does not depend on a request. Therefore that assignment of error was overruled.
With respect to the affidavit the Court of Appeals examined it under seal and concluded that it was sufficient to justify the existence of a search warrant. Since it found that it was sufficient the other argument concerning the sealing of the warrant was rendered moot.
Akron v. Prince, 2013-Ohio-2671 was an appeal from the defendant's conviction in the Akron Municipal Court. The Court of Appeals reversed the conviction and remanded the case for further proceedings. Ms. Prince raised two assignments of error on appeal. The appellate court consolidated them for purposes of its decision.
Since Ms. Prince was representing herself, the Court of Appeals had some difficulty with the issues she was raising on appeal. The Court wrote that her complaints were that she was not given all the documents she should have been given prior to trial through discovery and that the trial court considered matters outside of the evidence presented at trial. The Court of Appeals found that the trial court had considered matters outside of the evidence introduced at trial and therefore Ms. Prince's due process rights were violated.
State v. Kosturko, 2013-Ohio-2670 was an appeal from a decision of the Summit County Common Pleas Court. Appellate counsel informed the appellate court that she had reviewed the transcript of the proceedings below and there were no grounds for an appeal. This representation was based on the United States Supreme Court decision of Anders v. California, 386
U.S. 738 (1967). The Court of Appeals gave the defendant an opportunity to respond, no response was made, and so the case was dismissed.
In re L.M., 2013-Ohio-2669 was an appeal from a decision of the Summit County Juvenile Court terminating the parental rights of a mother and awarding temporary custody of the child to the Summit County Children Services' Bureau. The Court affirmed the termination order.
The mother filed two assignments of error. One was that the trial court erred in not allowing the mother an additional six months of custody in order to complete her case plan objectives. The other was that the trial court erred in not appointing a guardian ad litem for the child. The Court of Appeals overruled both assignments of error.
State v. Hume, 2013-Ohio-2668 was an appeal from a decision of the Summit County Common Pleas Court. The Court of Appeals reversed in part and affirmed in part and remanded. The Court of Appeals sustained the assignment of error that claimed the trial court erred when it ordered restitution over the objection of defense counsel without a hearing. The Court overruled the assignment of error that claimed the trial court erred when it imposed the maximum sentence of three years in prison and a lifetime revocation of the defendant's driver's license.
State v. Griffin, 2013-Ohio-2667 affirmed a decision from the Summit County Common Pleas Court. Mr. Griffin listed three assignments of error. The first assignment of error was that the trial court erred when it reimposed post-release control following a hearing. The second was that the trial court should erred in stating that it had no authority to do other than reimpose the original sentence. The third was that Mr. Griffin had inadequate representation. All three assignments of error were overruled.
Flagstar Bank, FSB v. Harvey, 2013-Ohio-2666 reversed a decision from the Summit County Common Pleas Court granting a foreclosure to Flagstar Bank. Based on the Ohio Supreme Court decision of Fed. Home Loan Mtge. Corp. v. Schwartzwald, 134 Ohio St.3d 13, 2012-Ohio-5017, it found that it was not established that the Bank was the real party in interest at the time of the filing of the lawsuit. It therefore reversed and remanded. Since it had reversed and remanded on that assignment of error, the other two assignments of error were moot.
State v. Brown, 2013-Ohio-2665 reversed Mr. Brown's conviction on the grounds that the manifest weight of the evidence didn't support his conviction. The Court of Appeals found that there was sufficient evidence of his guilt to justify the case going to the jury, but that the manifest weight of the evidence did not support his conviction. Since the Court of Appeals reversed and remanded on that assignment of error, it did not reach the second assignment of error which was that the trial court erred in admitting other acts evidence.
State v. Boone, 2013-Ohio-2664 reversed and remanded Mr. Boone's conviction because the trial court failed to comply with two provisions of the Ohio Revised Code regarding the imposition of court costs and the imposition of repayment of assigned counsel fees. The case was remanded back to the Summit County Common Pleas Court for further proceedings.
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