State v. Watson, 2013-Ohio-3392 affirmed a conviction by the Medina County Common Pleas Court for two counts of drug trafficking. Mr. Watson argued that the trial court erred in imposing a maximum sentence. The Court of Appeals noted that the record on appeal did not include the presentence investigation report and that it was Watson's duty to make sure it was included in the record. It also noted that the sentence fell within the statutory scheme and therefore wasn't contrary to law.
In his second assignment of error Watson argued that the trial court erred in including the phrase "within the vicinity of a juvenile" in the sentencing entry since the trial court had specifically found that the crime did not take place within the vicinity of a child. The Court of Appeals rejected that assignment since the trial court had stated on the record that it did not find beyond a reasonable doubt that the offense was committed within the vicinity of a juvenile and then proceeded to sentence him accordingly. Therefore any error was harmless.
State v. Earl, 2013-Ohio-3391 affirmed the dismissal by the Lorain County Common Pleas Court of charges of passing bad checks and forgery. The State appealed raising two assignments of error. One was that the trial court erred in referring Mr. Earl to a pre-trial diversion program not established by the Lorain County Prosecuting Attorney and the second was that having such a program violated the separation of powers doctrine. Both arguments were rejected since the appellate court found that the record was not complete and therefore could not be reviewed.
Monday, August 26, 2013
Ninth District Opinions Released on August 14, 2013
State v. Tomlinson, 2013-Ohio-3520 was a decision in which Mr. Tomlinson filed an application with the Court to reopen his appeal. The Court granted the request, finding that his appellate counsel had been deficient. The Court then went on to reverse his conviction because the trial court had erred in the manner in which it imposed court costs. Judge Carr concurred in the opinion noting that she would not have vacated the Court's prior decision but would have remanded back to the trial court for a correct assessment of costs.
State v. Swiger, 2013-Ohio-3519 was a reversal of a decision from the Summit County Common Pleas Court. Ms. Swiger argued that the trial court had erred in not giving the jury an insanity defense instruction on her charges of aggravated vehicular assault and driving while under the influence. The trial court did give an insanity instruction on the charges of leaving the scene of an accident, and child endangering. The jury found Swiger guilty of all four counts.
Swiger appealed the trial court's denial. The State responded by pointing out that in the case of State v. Ungerer, 87 Ohio App.3d 110 the Court held that a defendant was not entitled to a not guilty by reason of insanity. The State also argued that that charges of aggravated vehicular assault and driving while under the influence do not have a culpable mental state and therefore Swiger was not entitled to an insanity instruction.
The Court rejected both arguments. In regards to the first argument the Court pointed out that its prior decision had involved a municipal court case which was brought under the Ohio Traffic Rules. Those Rules do not provide for an plea of not guilty by reason of insanity. All of Swiger's charges, however, were brought pursuant to an indictment and therefore the Traffic Rules did not apply.
On the second argument the Court acknowledged that the offenses do not carry a culpable mental state. The Court reasoned, however, that R.C.2901.21(D)(2) requires that criminal liability be imposed when the defendant acts voluntarily and cannot be imposed when the defendant acts involuntarily such as when the person is asleep or unconscious. The Court then reasoned that a person who is insane is not engaging in voluntary acts. Consequently the Court held that defendants charged with strict liability offenses may raise the defense of not guilty by reason of insanity.
State v. Sturgell, 2013-Ohio-3518 was an appeal from a decision of the Summit County Common Pleas Court imposing consecutive sentences. Unfortunately for Mr. Sturgell while he filed an appeal from the decision of the trial court on his motion to "correct" his sentence, he did not file an appeal from the judgment entries that actually imposed the consecutive sentences. As a result those sentencing entries were not part of the record on his appeal from the decision regarding his motion to correct his sentence. Since they were not part of the record, the appellate court did not have jurisdiction to review assignments of error based on those entries. Consequently all of Sturgell's assignments of error were overruled.
Stewart v. Depth Constr., 2013-Ohio-3517 was a decision appealing the granting of a motion for summary judgment from the Akron Municipal Court. The Court of Appeals reversed and remanded. The basis of the reversal was that the defendant did not meet the burden under Dresher v. Burt, 75 Ohio St.3d 280, 293 (1996), of pointing to evidentiary materials that supports the motion for summary judgment. Since the defendant did not meet that burden, the decision was reversed. The decision goes on with a very interesting discussion on suing entities with trade or fictitious names.
Quantum Servicing Corp. v. Haugabrook, 2013-Ohio-3516 was a decision appealing the denial of a motion to reconsider the granting of a default judgment issued by the Summit County Common Pleas Court. The Court of Appeals reversed and remanded with instructions to dismiss the case. The Court ruled that the plaintiff never established that it had standing to bring the lawsuit. The decision was based on the Ohio Supreme Court decision of Fed. Home Loan Mtge. Corp. v. Schwartzwald, 134 Ohio St.3d 13, 2012-Ohio-5017, and subsequent cases.
State v. Lovett, 2013-Ohio-3515 was an appeal from a decision of the Summit County Common Pleas Court denying a motion to have the trial court declare that Lovett didn't have to pay storage fees on a vehicle seized during a traffic stop. The Court of Appeals found that Lovett's appeal was not well taken since he hadn't filed an appeal from the entry that sentenced him and ordered him to pay the storage and towing fees. Since he hadn't appealed from that entry, the appellate court had no jurisdiction to hear his appeal.
State v. Klein, 2013-Ohio-3514 was an appeal from a decision of the Summit County Common Pleas Court convicting him of DUI, aggravated vehicular assault, and driving while under suspension. Mr. Klein appealed citing two grounds of error. The first was that the jury verdicts were against the manifest weight of the evidence and the other was that the trial court in allowing a police officer to testify as an expert without submitting a report as provided in Crim. R. 16 (K). The appellate court rejected both arguments and affirmed Klein's convictions.
In re D.K., 2013-Ohio-3513 was an appeal from a decision of the Summit County Juvenile Court terminating the parental rights of the child D.K. The assignments of error by the mother and father were that the evidence relied on by the lower court was not clear and convincing. The opinion is very fact specific. The appellate court affirmed the Juvenile Court's decision.
State v. Hurd, 2013-Ohio-3512 was a decision reversing Ms. Hurd's conviction for domestic violence in the Stow Municipal Court. When the case was called Hurd appeared without an attorney. When asked why she hadn't applied for representation by the public defender she said that she had been sick. The trial court noted that the case had been pending for a month and that people would be "inconvenienced" if the case didn't proceed to trial. The trial proceeded and Hurd was convicted. She was sentenced to 10 days in jail, but the jail time was suspended and she was put on probation for two years.
In reversing the conviction the Court of Appeals noted that Crim. R. 44 (B) prohibits incarceration for a "petty" offense, i.e., one that carries six months of incarceration or less as a penalty, unless the defendant knowingly waives counsel. In this case that did not happen and so the case was reversed and remanded.
State v. Dickson, 2013-Ohio-3511 affirmed Mr. Dickson's conviction for four misdemeanors including obstructing official business, coercion, and receiving stolen property. Dickson appealed arguing that his attorney was ineffective, the evidence was insufficient to convict him, and that the convictions were against the manifest weight of the evidence. All of the assignments of error were overruled.
State v. Daniel, 2013-Ohio-3510 was an appeal from a decision of the Summit County Common Pleas Court denying a petition for post-conviction relief. Mr. Daniel was convicted in 1999 of three counts of rape and three counts of gross sexual imposition. The indictment that contained those charges was a supplemental indictment and was not signed by the grand jury foreperson or deputy foreperson. Daniel argued that because the indictment was not signed it was defective and that the charges should have been dismissed.
The Court of Appeals affirmed on two grounds. The first was that the petition for post-conviction relief was untimely in that 12 years had passed and Daniel did not show why the petition could not have been filed timely. The second was that the issue of the unsigned indictment could have been raised on direct appeal. The decision of the lower court was affirmed.
State v. Campanalie, 2013-Ohio-3509 affirmed Ms. Capanalie's conviction by the Stow Municipal Court for one count of theft, a first degree misdemeanor. Capanallie argued that the evidence was insufficient for conviction and that the trial court should have granted a directed verdict of acquittal under Crim. R. 29. The appellate court rejected that argument.
Buckeye Corrugated, Inc. v. Cincinnati Ins. Co., 2013-Ohio-3508 was an appeal from a decision of the Summit County Common Pleas Court granting a motion by the Cincinnati Insurance Company to compel discovery. Cincinnati was defending Buckeye Corrugated on a reservation of rights. BCI claimed that the information sought by Cincinnati was privileged under attorney-client privilege and that BCI had not waived its privilege with respect to that information. The Court of Appeals agreed with BCI and reversed the trial court's decision. The opinion contains a very good discussion of attorney-client privilege and the waiver of such privilege.
Brown v. Allala, 2013-Ohio-3507 reversed a decision by the Summit County Domestic Relations Court regarding child support owed by Mr. Allala for the minor child of the parties. The Court of Appeals reversed because the record did not show that the trial court either adopted a child support worksheet or completed one on its own. The Court of Appeals noted that in prior rulings it had said that R.C. 3119.02 mandates that the record include a completed child support worksheet and it is reversible error if the record does not include such an order.
State v. Ball, 2013-Ohio-3506 affirmed Mr. Ball's conviction by the Summit County Common Pleas Court for seven counts alleging sex offenses including rape and gross sexual imposition. Ball appealed arguing that the verdict was against the manifest weight of the evidence, that his trial attorney was incompetent, and that there was prosecutorial misconduct. All of the assignments of error were overruled.
State v. Linde, 2013-Ohio-3503 affirmed Mr. Linde's conviction in the Summit County Common Pleas Court for aggravated robbery and aggravated burglary. Linde appealed arguing that the trial court incorrectly sentenced him for allied offenses of similar import. The Court of Appeals noted that an issue regarding allied offenses of similar import are fact specific and that Linde's brief contained no facts regarding the two offenses. Therefore that argument was rejected.
Linde also argued that the offenses of aggravated robbery and aggravated burglary are allied offenses. The Court of Appeals in rejecting that argument noted that several appellate courts in Ohio have found that the two offenses are not allied offenses of similar import. The following quote is from the opinion: "Since Johnson, numerous appellate courts have determined that aggravated robbery and aggravated burglary are not allied offenses of similar import because an aggravated burglary is complete upon an offender’s forced entrance and an aggravated robbery requires additional conduct."
Linde's third assignment of error was that the trial court erred in imposing sentences greater than the minimum sentences. That assignment was also rejected.
State v. Swiger, 2013-Ohio-3519 was a reversal of a decision from the Summit County Common Pleas Court. Ms. Swiger argued that the trial court had erred in not giving the jury an insanity defense instruction on her charges of aggravated vehicular assault and driving while under the influence. The trial court did give an insanity instruction on the charges of leaving the scene of an accident, and child endangering. The jury found Swiger guilty of all four counts.
Swiger appealed the trial court's denial. The State responded by pointing out that in the case of State v. Ungerer, 87 Ohio App.3d 110 the Court held that a defendant was not entitled to a not guilty by reason of insanity. The State also argued that that charges of aggravated vehicular assault and driving while under the influence do not have a culpable mental state and therefore Swiger was not entitled to an insanity instruction.
The Court rejected both arguments. In regards to the first argument the Court pointed out that its prior decision had involved a municipal court case which was brought under the Ohio Traffic Rules. Those Rules do not provide for an plea of not guilty by reason of insanity. All of Swiger's charges, however, were brought pursuant to an indictment and therefore the Traffic Rules did not apply.
On the second argument the Court acknowledged that the offenses do not carry a culpable mental state. The Court reasoned, however, that R.C.2901.21(D)(2) requires that criminal liability be imposed when the defendant acts voluntarily and cannot be imposed when the defendant acts involuntarily such as when the person is asleep or unconscious. The Court then reasoned that a person who is insane is not engaging in voluntary acts. Consequently the Court held that defendants charged with strict liability offenses may raise the defense of not guilty by reason of insanity.
State v. Sturgell, 2013-Ohio-3518 was an appeal from a decision of the Summit County Common Pleas Court imposing consecutive sentences. Unfortunately for Mr. Sturgell while he filed an appeal from the decision of the trial court on his motion to "correct" his sentence, he did not file an appeal from the judgment entries that actually imposed the consecutive sentences. As a result those sentencing entries were not part of the record on his appeal from the decision regarding his motion to correct his sentence. Since they were not part of the record, the appellate court did not have jurisdiction to review assignments of error based on those entries. Consequently all of Sturgell's assignments of error were overruled.
Stewart v. Depth Constr., 2013-Ohio-3517 was a decision appealing the granting of a motion for summary judgment from the Akron Municipal Court. The Court of Appeals reversed and remanded. The basis of the reversal was that the defendant did not meet the burden under Dresher v. Burt, 75 Ohio St.3d 280, 293 (1996), of pointing to evidentiary materials that supports the motion for summary judgment. Since the defendant did not meet that burden, the decision was reversed. The decision goes on with a very interesting discussion on suing entities with trade or fictitious names.
Quantum Servicing Corp. v. Haugabrook, 2013-Ohio-3516 was a decision appealing the denial of a motion to reconsider the granting of a default judgment issued by the Summit County Common Pleas Court. The Court of Appeals reversed and remanded with instructions to dismiss the case. The Court ruled that the plaintiff never established that it had standing to bring the lawsuit. The decision was based on the Ohio Supreme Court decision of Fed. Home Loan Mtge. Corp. v. Schwartzwald, 134 Ohio St.3d 13, 2012-Ohio-5017, and subsequent cases.
State v. Lovett, 2013-Ohio-3515 was an appeal from a decision of the Summit County Common Pleas Court denying a motion to have the trial court declare that Lovett didn't have to pay storage fees on a vehicle seized during a traffic stop. The Court of Appeals found that Lovett's appeal was not well taken since he hadn't filed an appeal from the entry that sentenced him and ordered him to pay the storage and towing fees. Since he hadn't appealed from that entry, the appellate court had no jurisdiction to hear his appeal.
State v. Klein, 2013-Ohio-3514 was an appeal from a decision of the Summit County Common Pleas Court convicting him of DUI, aggravated vehicular assault, and driving while under suspension. Mr. Klein appealed citing two grounds of error. The first was that the jury verdicts were against the manifest weight of the evidence and the other was that the trial court in allowing a police officer to testify as an expert without submitting a report as provided in Crim. R. 16 (K). The appellate court rejected both arguments and affirmed Klein's convictions.
In re D.K., 2013-Ohio-3513 was an appeal from a decision of the Summit County Juvenile Court terminating the parental rights of the child D.K. The assignments of error by the mother and father were that the evidence relied on by the lower court was not clear and convincing. The opinion is very fact specific. The appellate court affirmed the Juvenile Court's decision.
State v. Hurd, 2013-Ohio-3512 was a decision reversing Ms. Hurd's conviction for domestic violence in the Stow Municipal Court. When the case was called Hurd appeared without an attorney. When asked why she hadn't applied for representation by the public defender she said that she had been sick. The trial court noted that the case had been pending for a month and that people would be "inconvenienced" if the case didn't proceed to trial. The trial proceeded and Hurd was convicted. She was sentenced to 10 days in jail, but the jail time was suspended and she was put on probation for two years.
In reversing the conviction the Court of Appeals noted that Crim. R. 44 (B) prohibits incarceration for a "petty" offense, i.e., one that carries six months of incarceration or less as a penalty, unless the defendant knowingly waives counsel. In this case that did not happen and so the case was reversed and remanded.
State v. Dickson, 2013-Ohio-3511 affirmed Mr. Dickson's conviction for four misdemeanors including obstructing official business, coercion, and receiving stolen property. Dickson appealed arguing that his attorney was ineffective, the evidence was insufficient to convict him, and that the convictions were against the manifest weight of the evidence. All of the assignments of error were overruled.
State v. Daniel, 2013-Ohio-3510 was an appeal from a decision of the Summit County Common Pleas Court denying a petition for post-conviction relief. Mr. Daniel was convicted in 1999 of three counts of rape and three counts of gross sexual imposition. The indictment that contained those charges was a supplemental indictment and was not signed by the grand jury foreperson or deputy foreperson. Daniel argued that because the indictment was not signed it was defective and that the charges should have been dismissed.
The Court of Appeals affirmed on two grounds. The first was that the petition for post-conviction relief was untimely in that 12 years had passed and Daniel did not show why the petition could not have been filed timely. The second was that the issue of the unsigned indictment could have been raised on direct appeal. The decision of the lower court was affirmed.
State v. Campanalie, 2013-Ohio-3509 affirmed Ms. Capanalie's conviction by the Stow Municipal Court for one count of theft, a first degree misdemeanor. Capanallie argued that the evidence was insufficient for conviction and that the trial court should have granted a directed verdict of acquittal under Crim. R. 29. The appellate court rejected that argument.
Buckeye Corrugated, Inc. v. Cincinnati Ins. Co., 2013-Ohio-3508 was an appeal from a decision of the Summit County Common Pleas Court granting a motion by the Cincinnati Insurance Company to compel discovery. Cincinnati was defending Buckeye Corrugated on a reservation of rights. BCI claimed that the information sought by Cincinnati was privileged under attorney-client privilege and that BCI had not waived its privilege with respect to that information. The Court of Appeals agreed with BCI and reversed the trial court's decision. The opinion contains a very good discussion of attorney-client privilege and the waiver of such privilege.
Brown v. Allala, 2013-Ohio-3507 reversed a decision by the Summit County Domestic Relations Court regarding child support owed by Mr. Allala for the minor child of the parties. The Court of Appeals reversed because the record did not show that the trial court either adopted a child support worksheet or completed one on its own. The Court of Appeals noted that in prior rulings it had said that R.C. 3119.02 mandates that the record include a completed child support worksheet and it is reversible error if the record does not include such an order.
State v. Ball, 2013-Ohio-3506 affirmed Mr. Ball's conviction by the Summit County Common Pleas Court for seven counts alleging sex offenses including rape and gross sexual imposition. Ball appealed arguing that the verdict was against the manifest weight of the evidence, that his trial attorney was incompetent, and that there was prosecutorial misconduct. All of the assignments of error were overruled.
State v. Linde, 2013-Ohio-3503 affirmed Mr. Linde's conviction in the Summit County Common Pleas Court for aggravated robbery and aggravated burglary. Linde appealed arguing that the trial court incorrectly sentenced him for allied offenses of similar import. The Court of Appeals noted that an issue regarding allied offenses of similar import are fact specific and that Linde's brief contained no facts regarding the two offenses. Therefore that argument was rejected.
Linde also argued that the offenses of aggravated robbery and aggravated burglary are allied offenses. The Court of Appeals in rejecting that argument noted that several appellate courts in Ohio have found that the two offenses are not allied offenses of similar import. The following quote is from the opinion: "Since Johnson, numerous appellate courts have determined that aggravated robbery and aggravated burglary are not allied offenses of similar import because an aggravated burglary is complete upon an offender’s forced entrance and an aggravated robbery requires additional conduct."
Linde's third assignment of error was that the trial court erred in imposing sentences greater than the minimum sentences. That assignment was also rejected.
Thursday, August 22, 2013
Ninth District Appellate Opinions for August 19, 2013
State v. Taylor, 2013-Ohio-3569 was an appeal from the Lorain County Common Pleas Court from that court's denial of a motion to vacate a sentence. Mr. Taylor argued that since the judgement entry that set forth his conviction didn't cite the section number of the Revised Code for the offense of "murder" he wasn't properly sentenced. The State argued that Taylor could have raised this issue on a direct appeal.
The Court of Appeals agreed with the State. It held that Taylor's appeal was barred by the doctrine of res judicata. Therefore it affirmed the trial court's ruling.
Semmelhaack v. Semmelhaack, 2013-Ohio-3568 was an appeal of a divorce case from Wayne County Common Pleas Court. The issue was whether the trial court had jurisdiction over the division of Mr. Semmelhaack's pension plan. The separation agreement split the husband's pension plan on a 50/50 split. The problem was that at some point the pension plan was split into two components. One of the components was the plan named in the agreement and the other plan had another name. Mr. Semmelhaack argued that the trial court only had jurisdiction over the named plan and not over the second plan, and could not split both plans.
The Court of Appeals agreed with Mr. Semmelhaack's reasoning. It reversed the trial court and remanded for further proceedings.
Kokoski v. Kokoski, 2013-Ohio-3567 was an appeal from a divorce decree issued by the Lorain County Common Pleas Court. Mr. Kokoski appealed raising three assignments of error. All the assignments asserted that the trial court had held against the manifest weight of the evidence in dividing the property; in awarding spousal and child support; and in ordering parenting time.
The Court of Appeals affirmed the trial court on the assignments dealing with child support; spousal support; and parenting time. It reversed and remanded, however, for the following reason: "The trial court did not adequately explain its reason for assigning all of the parties’ federal tax liability and penalties to Husband or how it calculated Husband’s partnership’s debt."
State v. Hackworth, 2013-Ohio-3566 was an appeal by the State from a decision of the Wayne County Municipal Court suppressing evidence obtained as the result of a traffic stop. The Court of Appeals reversed. It held that the trial court apparently concluded that there was not probable cause for the traffic stop since no minor traffic violation had occurred. The appellate court noted, however, that the appropriate test is whether there was a reasonable and articulable suspicion that the defendant was violating or had violated the law based on a totality of the circumstances. Therefore it remanded for the trial court to examine the evidence from the suppression hearing using the appropriate standard.
The Court of Appeals agreed with the State. It held that Taylor's appeal was barred by the doctrine of res judicata. Therefore it affirmed the trial court's ruling.
Semmelhaack v. Semmelhaack, 2013-Ohio-3568 was an appeal of a divorce case from Wayne County Common Pleas Court. The issue was whether the trial court had jurisdiction over the division of Mr. Semmelhaack's pension plan. The separation agreement split the husband's pension plan on a 50/50 split. The problem was that at some point the pension plan was split into two components. One of the components was the plan named in the agreement and the other plan had another name. Mr. Semmelhaack argued that the trial court only had jurisdiction over the named plan and not over the second plan, and could not split both plans.
The Court of Appeals agreed with Mr. Semmelhaack's reasoning. It reversed the trial court and remanded for further proceedings.
Kokoski v. Kokoski, 2013-Ohio-3567 was an appeal from a divorce decree issued by the Lorain County Common Pleas Court. Mr. Kokoski appealed raising three assignments of error. All the assignments asserted that the trial court had held against the manifest weight of the evidence in dividing the property; in awarding spousal and child support; and in ordering parenting time.
The Court of Appeals affirmed the trial court on the assignments dealing with child support; spousal support; and parenting time. It reversed and remanded, however, for the following reason: "The trial court did not adequately explain its reason for assigning all of the parties’ federal tax liability and penalties to Husband or how it calculated Husband’s partnership’s debt."
State v. Hackworth, 2013-Ohio-3566 was an appeal by the State from a decision of the Wayne County Municipal Court suppressing evidence obtained as the result of a traffic stop. The Court of Appeals reversed. It held that the trial court apparently concluded that there was not probable cause for the traffic stop since no minor traffic violation had occurred. The appellate court noted, however, that the appropriate test is whether there was a reasonable and articulable suspicion that the defendant was violating or had violated the law based on a totality of the circumstances. Therefore it remanded for the trial court to examine the evidence from the suppression hearing using the appropriate standard.
Ninth District Appellate Opinions for August 21, 2013
Opinions Released August 21, 2013
Savoy v. Kramer, 2013-Ohio-3607 was an appeal from a Summit County Court of Common Pleas order dismissing a civil case because the case was filed outside of the one year period allowed under Ohio's savings statute, R.C. 2305.19(A). Mr. Savoy filed a personal injury action against Ms. Kramer. He then filed a motion to dismiss, citing to Civ. R. 41 (A) (1) and not Civ. R. 41 (A) (2).
When the trial court granted the motion the judge wrote on the entry that the case was dismissed even though under Civ. R. 41 (A) (1) the plaintiff didn't need to file the motion since he could obtain a dismissal under that rule by just putting on a notice.
Savoy then refiled within one year of the judge's entry, but outside of one year from the time that he filed the motion. In the trial court Kramer argued that since Civ. R. 41 (A) (1) only requires a notice, the time period should start when the motion was filed because, in effect, the motion was a notice of dismissal. The trial court agreed with Kramer and dismissed the case.
Savoy argued on appeal that his motion was actually filed under Civ. R. 41 (A) (2) since it was a motion and not under Civ. R. 41 (A) (1), even though he cited to that rule in the motion. The trial court noted in its dismissal entry that Savoy hadn't filed a response memorandum, even though one had been filed six days earlier. Kramer argued that Savoy's memorandum was filed outside of the time limits set forth in the Summit County Local Rules.
The Court of Appeals reversed and remanded for the trial court to consider the arguments raised in Savoy's memorandum and also to consider Kramer's objection based on the Local Rules.
State v. Quarterman, 2013-Ohio-3606 was an appeal from a Summit County Common Pleas conviction of Mr. Quarterman following his bind over from the Summit County Juvenile Court. Quarterman listed four assignments of error. Three of them concerned challenges to the bind over statute, including constitutionality arguments, and one was for ineffectiveness of counsel for not raising the constitutional arguments. Unfortunately for Quarterman he pled guilty in the Common Pleas Court and thereby waived all of his assignments of error. The conviction was affirmed.
Kolenz v. Kolenz, 2013-Ohio-3605 was an appeal from the Summit County Domestic Relations Court finding that Mr. Kolenz was voluntarily unemployed and imputing income to him of $60,000.00 per year and ordering spousal support of $1375.00. The Court of Appeals affirmed the trial court and ruled against Kolenz on his two assignments of error.
State v. Jones, 2013-Ohio-3604 was an appeal from a criminal conviction in the Summit County Common Pleas Court. Mr. Jones was convicted of multiple felonies. He appealed citing two assignments of error. One was that there was not sufficient evidence to convict him and the other was that the jury verdict was against the manifest weight of the evidence. Both assignments of error were rejected by the appellate court.
Eckmeyer v. Blough, 2013-Ohio-3603 was an appeal from a decision of the Summit County Common Pleas Court granting a summary judgment to the defendants on the basis that the complaint was time barred. Eckmeyer had originally filed in United States District Court. The District Court dismissed federal claims against government officials and the political entity that they worked for, and then, some time later, dismissed the private individuals. The reason for the dismissal of the private individuals was because the Federal Court did not have jurisdiction over the claims against those defendants. Those claims were based on state law and not on federal law.
Eckmeyer then filed in the Summit County Common Pleas Court. The defendants moved to dismiss on the grounds that the claims against them were time barred. In particular they argued that the Summit County complaint had not been filed within one year as required by Ohio's savings statute, R.C. 2305.19. The state court agreed with their position and dismissed the case.
On appeal Eckmeyer argued that the savings statute should commence to run when the entire action is dismissed as opposed to starting to run when individual claims are dismissed. The Court of Appeals, noting that there was no case law directly on point, rejected that argument.
The Court noted that there are three requirements for an action to be "saved" under R.C. 2305.19. Those are: "(1) an action must have been commenced or attempted to have been commenced prior to the expiration of the
applicable statute of limitations; (2) the cause of action must have failed otherwise than upon the merits; and (3) the failure of that action must have occurred after the statute of limitations period has expired.”
In this case the appellate court found that all three conditions were satisfied, and held that the Summit County case should have been brought within a year of the Federal Court's dismissal and not within a year of the entire action being dismissed.
Savoy v. Kramer, 2013-Ohio-3607 was an appeal from a Summit County Court of Common Pleas order dismissing a civil case because the case was filed outside of the one year period allowed under Ohio's savings statute, R.C. 2305.19(A). Mr. Savoy filed a personal injury action against Ms. Kramer. He then filed a motion to dismiss, citing to Civ. R. 41 (A) (1) and not Civ. R. 41 (A) (2).
When the trial court granted the motion the judge wrote on the entry that the case was dismissed even though under Civ. R. 41 (A) (1) the plaintiff didn't need to file the motion since he could obtain a dismissal under that rule by just putting on a notice.
Savoy then refiled within one year of the judge's entry, but outside of one year from the time that he filed the motion. In the trial court Kramer argued that since Civ. R. 41 (A) (1) only requires a notice, the time period should start when the motion was filed because, in effect, the motion was a notice of dismissal. The trial court agreed with Kramer and dismissed the case.
Savoy argued on appeal that his motion was actually filed under Civ. R. 41 (A) (2) since it was a motion and not under Civ. R. 41 (A) (1), even though he cited to that rule in the motion. The trial court noted in its dismissal entry that Savoy hadn't filed a response memorandum, even though one had been filed six days earlier. Kramer argued that Savoy's memorandum was filed outside of the time limits set forth in the Summit County Local Rules.
The Court of Appeals reversed and remanded for the trial court to consider the arguments raised in Savoy's memorandum and also to consider Kramer's objection based on the Local Rules.
State v. Quarterman, 2013-Ohio-3606 was an appeal from a Summit County Common Pleas conviction of Mr. Quarterman following his bind over from the Summit County Juvenile Court. Quarterman listed four assignments of error. Three of them concerned challenges to the bind over statute, including constitutionality arguments, and one was for ineffectiveness of counsel for not raising the constitutional arguments. Unfortunately for Quarterman he pled guilty in the Common Pleas Court and thereby waived all of his assignments of error. The conviction was affirmed.
Kolenz v. Kolenz, 2013-Ohio-3605 was an appeal from the Summit County Domestic Relations Court finding that Mr. Kolenz was voluntarily unemployed and imputing income to him of $60,000.00 per year and ordering spousal support of $1375.00. The Court of Appeals affirmed the trial court and ruled against Kolenz on his two assignments of error.
State v. Jones, 2013-Ohio-3604 was an appeal from a criminal conviction in the Summit County Common Pleas Court. Mr. Jones was convicted of multiple felonies. He appealed citing two assignments of error. One was that there was not sufficient evidence to convict him and the other was that the jury verdict was against the manifest weight of the evidence. Both assignments of error were rejected by the appellate court.
Eckmeyer v. Blough, 2013-Ohio-3603 was an appeal from a decision of the Summit County Common Pleas Court granting a summary judgment to the defendants on the basis that the complaint was time barred. Eckmeyer had originally filed in United States District Court. The District Court dismissed federal claims against government officials and the political entity that they worked for, and then, some time later, dismissed the private individuals. The reason for the dismissal of the private individuals was because the Federal Court did not have jurisdiction over the claims against those defendants. Those claims were based on state law and not on federal law.
Eckmeyer then filed in the Summit County Common Pleas Court. The defendants moved to dismiss on the grounds that the claims against them were time barred. In particular they argued that the Summit County complaint had not been filed within one year as required by Ohio's savings statute, R.C. 2305.19. The state court agreed with their position and dismissed the case.
On appeal Eckmeyer argued that the savings statute should commence to run when the entire action is dismissed as opposed to starting to run when individual claims are dismissed. The Court of Appeals, noting that there was no case law directly on point, rejected that argument.
The Court noted that there are three requirements for an action to be "saved" under R.C. 2305.19. Those are: "(1) an action must have been commenced or attempted to have been commenced prior to the expiration of the
applicable statute of limitations; (2) the cause of action must have failed otherwise than upon the merits; and (3) the failure of that action must have occurred after the statute of limitations period has expired.”
In this case the appellate court found that all three conditions were satisfied, and held that the Summit County case should have been brought within a year of the Federal Court's dismissal and not within a year of the entire action being dismissed.
Monday, August 05, 2013
Ninth District Opinions for July 29 and July 31, 2013
The Court of Appeals for the Ninth Appellate District released four opinions during the week of July 29. One opinion was released on July 29 and three opinions were released on July 31. My summaries of the opinions appeal below.
Opinions Released on July 31, 2013
State v. El-Jones, 2013-Ohio-3349 affirmed a decision of the Summit County Common Pleas Court denying El-Jones's petition for post-conviction relief. El-Jones argued on appeal that the trial court should have given him a hearing on his petition.
El-Jones argued on appeal that the trial court should have given him a hearing because he had submitted an affidavit from a friend that established the existence of an alibi defense. The alibi defense was not raised by El-Jones's counsel during the trial. The Court of Appeals reviewed the findings of fact made by the trial court and concluded that the trial court acted correctly in not granting El-Jones a hearing.
Maxim Ents., Inc. v. Haley, 2013-Ohio-3348 reversed a decision from the Summit County Common Pleas Court granting a Civ. R. 60 motion to a third party defendant. The trial court had vacated a default judgment against the third party defendant. Haley, who was the plaintiff in the third party litigation, appealed. The Court of Appeals found that the trial court's order granting the motion to vacate the order should be reversed.
The trial court had found that the third party defendant was a "non-entity" and therefore couldn't be sued. If it was a non-entity, then the trial court had the right to vacate the judgment without considering the three prong test set forth in GTE Automatic Elec., Inc. v. ARC Industries, Inc., 47 Ohio St.2d 146 (1976). The record, however, also contained a reference to the third party defendant as having "appeared". If it had "appeared" then it couldn't be a non-entity and the trial court would have to apply the three prong test set forth in GTE Automatic Elec., Inc. Since the Court of Appeals found that it wasn't able to determine the basis for the trial court's ruling it remanded the case to the trial court with an order that the trial court clarify its reasoning.
State v. Conley, 2013-Ohio-3347 reversed Conley's conviction for disorderly conduct in the Barberton Municipal Court. The case started out as an assault case but the trial court found him guilty of disorderly conduct. The Court of Appeals found that disorderly conduct is not a lesser included offense of assault and reversed his conviction.
Opinion Released on July 29, 2013
State v. Johnson, 2013-Ohio-3306 reversed a decision of the Medina County Common Pleas Court imposing consecutive sentences for two counts of felonious assault. The Court of Appeals found that the trial court made a erroneous factual finding when it imposed the consecutive sentences and remanded for further proceedings. Since it remanded the case on the basis of the erroneous factual findings, it did not address the issue of whether the two offenses were allied offenses of similar import.
Opinions Released on July 31, 2013
State v. El-Jones, 2013-Ohio-3349 affirmed a decision of the Summit County Common Pleas Court denying El-Jones's petition for post-conviction relief. El-Jones argued on appeal that the trial court should have given him a hearing on his petition.
El-Jones argued on appeal that the trial court should have given him a hearing because he had submitted an affidavit from a friend that established the existence of an alibi defense. The alibi defense was not raised by El-Jones's counsel during the trial. The Court of Appeals reviewed the findings of fact made by the trial court and concluded that the trial court acted correctly in not granting El-Jones a hearing.
Maxim Ents., Inc. v. Haley, 2013-Ohio-3348 reversed a decision from the Summit County Common Pleas Court granting a Civ. R. 60 motion to a third party defendant. The trial court had vacated a default judgment against the third party defendant. Haley, who was the plaintiff in the third party litigation, appealed. The Court of Appeals found that the trial court's order granting the motion to vacate the order should be reversed.
The trial court had found that the third party defendant was a "non-entity" and therefore couldn't be sued. If it was a non-entity, then the trial court had the right to vacate the judgment without considering the three prong test set forth in GTE Automatic Elec., Inc. v. ARC Industries, Inc., 47 Ohio St.2d 146 (1976). The record, however, also contained a reference to the third party defendant as having "appeared". If it had "appeared" then it couldn't be a non-entity and the trial court would have to apply the three prong test set forth in GTE Automatic Elec., Inc. Since the Court of Appeals found that it wasn't able to determine the basis for the trial court's ruling it remanded the case to the trial court with an order that the trial court clarify its reasoning.
State v. Conley, 2013-Ohio-3347 reversed Conley's conviction for disorderly conduct in the Barberton Municipal Court. The case started out as an assault case but the trial court found him guilty of disorderly conduct. The Court of Appeals found that disorderly conduct is not a lesser included offense of assault and reversed his conviction.
Opinion Released on July 29, 2013
State v. Johnson, 2013-Ohio-3306 reversed a decision of the Medina County Common Pleas Court imposing consecutive sentences for two counts of felonious assault. The Court of Appeals found that the trial court made a erroneous factual finding when it imposed the consecutive sentences and remanded for further proceedings. Since it remanded the case on the basis of the erroneous factual findings, it did not address the issue of whether the two offenses were allied offenses of similar import.
Ninth District Opinions Released on July 22 and 24, 2013
Last week the Court of Appeals for the Ninth Appellate District released 10 opinions for decisions from all four counties that comprise its jurisdiction. My summaries of the opinions are listed below:
Opinions Released on July 24, 2013
BAC Home Loan Serv. v. McFerren, 2013-Ohio-3228 was a decision reversing a Summit County Common Pleas Court decision that granted a foreclosure to Bank of America. The decision was based on the Ohio Supreme Court case of Fed. Home Loan Mtge. Corp. v. Schwartzwald, 134 Ohio St.3d 13, 2012-Ohio-5017. The Court of Appeals determined that Bank of America had not shown that it had standing to bring the foreclosure action. The case was remanded back to the trial court for further proceedings.
In the opinion the Ninth District makes clear that the Bank had to show that it had possession of the note when it filed the foreclosure action as opposed to just showing that the note had been assigned to the Bank prior to filing the foreclosure action. This analysis was based on Ninth District opinions released prior to the Schwartzwald decision.
Hoyle v. DTJ Ents., Inc., 2013-Ohio-3223 was a decision reversing a summary judgment that was granted to the Cincinnati Insurance Company by the Summit County Common Pleas Court. The issue on appeal was whether the insurance company had an obligation to provide a defense to two defendants who were sued as a result of a workplace injury by an employee of one of the defendants. The insurance company argued that it did not have to provide such a defense because the policy in question did not provide coverage for "intentional acts."
The Court of Appeals reversed on the reasoning that while acts with a deliberate intent to injured were excluded from coverage, the policy specifically provided coverage for the following: "...an “intentional act,” which it defines as one where the insured (1) knows of the existence of a dangerous condition within its business operation, (2) knows that if an employee is
subjected to the dangerous condition, then harm to the employee will be a “substantial certainty,” and (3) requires “the ‘employee’ to continue to perform the dangerous task.” The appellate court could not conclude that an act which met the three conditions above would also be an act with a deliberate intent to injure. Therefore summary judgment was not appropriate and the trial court was reversed.
Saxon Mtge. Servs., Inc. v. Whitely, 2013-Ohio-3221 was a decision affirming a denial of a motion to vacate a judgment by the Summit County Common Pleas Court. The reason why the Court of Appeals affirmed the trial court was the proceeds of the foreclosure sale had been disbursed and therefore there was no controversy before the appellate court. The opinion contains a very interesting discussion on the doctrine of mootness at paragraphs numbers 6 through ten.
State v. Ross, 2013-Ohio-3220 was a decision both affirming in part and reversing in part a criminal conviction by the Summit County Common Pleas Court. Ross set forth three assignments of error in his appeal.
The first assignment was that the trial court had not adequately informed him of the rights he was giving up by entering a plea of guilty. The appellate court reviewed the language used by the trial court and found that although the colloquy didn't quote the language of Crim. R. 11 verbatim, it was sufficient to satisfy the requirements of that Rule, especially considering that Ross also signed a written plea waiver form.
The second assignment of error was that the trial court should have held a hearing on his motion to withdraw his plea. At the change of plea hearing the State was recommending a six month prison sentence on both counts to run concurrently. The trial court expressed reservations about imposing the jointly recommended sentences. At the time of the sentence the trial court imposed two sentences of 11 months to run consecutively. (It should be noted that Ross failed to appear at the first scheduled sentencing hearing.)
The Court of Appeals held that the trial court should have held a hearing since (1) the trial court had equivocated on following the recommendations of the State and (2) because Ross maintained he was not guilty of one of the offenses.
State v. Johnson, 2013-Ohio-3218 affirmed Johnson's conviction by the Summit County Common Pleas Court on one count of cocaine trafficking. Johnson argued on appeal that his conviction was based on insufficient evidence and that the jury verdict was against the manifest weight of the evidence. Both arguments were rejected by the Court of Appeals.
JPMorgan Chase Bank v. Byrd, 2013-Ohio-3217 affirmed a decision of the Summit County Common Pleas Court granting a foreclosure to J.P. Morgan. The homeowners argued that the evidence offered by the Bank to obtain a summary judgment wasn't sufficient. In particular they argued that the bank officer who signed the affidavit wasn't identified in the interrogatories they had sent to the bank and that the officer didn't have personal knowledge of the matters attested to in his affidavit. Both arguments were rejected.
Opinions Released on July 22, 2013
State v. New, 2013-Ohio-3193 reversed a decision by the Lorain County Common Pleas Court on an appeal filed by the State of Ohio. The trial court had found that the State had not justified a 35 year delay in bringing a murder charge against New for the death of a woman he was dating. The appeal involved the issue of pre-indictment delay and New's right to a speedy trial. On an appeal involving pre-indictment delay the appellate court defers to the trial court on issues of fact but reviews the case de novo on the application of the law to the facts. Under that standard the Court of Appeals found that the delay was justified, reversed the decision, and remanded for further proceedings.
State v. Martinez, 2013-Ohio-3189 affirmed Martinez's conviction by the Wayne County Municipal Court for domestic violence. Martinez appealed arguing that his conviction was against the manifest weight of the evidence. The Court of Appeals affirmed the conviction.
Kostyo v. Kaminski, 2013-Ohio-3188 affirmed in part and reversed in part the decision of the Lorain County Common Pleas Court granting a summary judgment to Kaminski. The case involved the transfer of money from Mrs. Kostyo to an account controlled by her sister, Kaminski, and a mutual brother of the two women. When the brother died, Kaminski was the sole owner of the account. The litigation started when Kostyo was alive, but when she died, the litigation was continued by her son who was the estate administrator.
Kostyo appealed arguing that the trial court should have denied Kaminski's motion for summary judgment and should have awarded him summary judgment instead. The Court of Appeals affirmed the trial court's denial of Kostyo's motion for summary judgment. It reversed the trial court's finding that Kaminksi was entitled to summary judgment on the issues of unjust enrichment and conversion. The case was then remanded to the trial court for further proceedings.
State v. Bellomy, 2013-Ohio-3187 affirmed Bellomy's conviction by the Medina County Common Pleas Court for violating a civil protection order, which is a fifth degree felony since Bellomy had been convicted of a previous violation. Bellomy appealed citing four assignments of error. He argued that the trial court erred by not giving a mistake of fact instruction; that it erred by not answering a jury request for a definition of negligence; that it erred by not granting a Crim. R. 29 motion; and that it erred by not granting Bellomy the proper jail time credit.
The Court of Appeals found that Bellomy had not preserved the argument that there should have been a mistake of fact instruction because the record didn't contain a copy of his proposed instruction. It found that when his trial counsel agreed with the trial court's decision not to instruct on negligence he waived all but plain error with respect to that assignment and that plain error didn't apply. It found that the trial court properly overruled his Crim. R. 29 motion, and it found that his assignment regarding jail time credit was moot.
Opinions Released on July 24, 2013
BAC Home Loan Serv. v. McFerren, 2013-Ohio-3228 was a decision reversing a Summit County Common Pleas Court decision that granted a foreclosure to Bank of America. The decision was based on the Ohio Supreme Court case of Fed. Home Loan Mtge. Corp. v. Schwartzwald, 134 Ohio St.3d 13, 2012-Ohio-5017. The Court of Appeals determined that Bank of America had not shown that it had standing to bring the foreclosure action. The case was remanded back to the trial court for further proceedings.
In the opinion the Ninth District makes clear that the Bank had to show that it had possession of the note when it filed the foreclosure action as opposed to just showing that the note had been assigned to the Bank prior to filing the foreclosure action. This analysis was based on Ninth District opinions released prior to the Schwartzwald decision.
Hoyle v. DTJ Ents., Inc., 2013-Ohio-3223 was a decision reversing a summary judgment that was granted to the Cincinnati Insurance Company by the Summit County Common Pleas Court. The issue on appeal was whether the insurance company had an obligation to provide a defense to two defendants who were sued as a result of a workplace injury by an employee of one of the defendants. The insurance company argued that it did not have to provide such a defense because the policy in question did not provide coverage for "intentional acts."
The Court of Appeals reversed on the reasoning that while acts with a deliberate intent to injured were excluded from coverage, the policy specifically provided coverage for the following: "...an “intentional act,” which it defines as one where the insured (1) knows of the existence of a dangerous condition within its business operation, (2) knows that if an employee is
subjected to the dangerous condition, then harm to the employee will be a “substantial certainty,” and (3) requires “the ‘employee’ to continue to perform the dangerous task.” The appellate court could not conclude that an act which met the three conditions above would also be an act with a deliberate intent to injure. Therefore summary judgment was not appropriate and the trial court was reversed.
Saxon Mtge. Servs., Inc. v. Whitely, 2013-Ohio-3221 was a decision affirming a denial of a motion to vacate a judgment by the Summit County Common Pleas Court. The reason why the Court of Appeals affirmed the trial court was the proceeds of the foreclosure sale had been disbursed and therefore there was no controversy before the appellate court. The opinion contains a very interesting discussion on the doctrine of mootness at paragraphs numbers 6 through ten.
State v. Ross, 2013-Ohio-3220 was a decision both affirming in part and reversing in part a criminal conviction by the Summit County Common Pleas Court. Ross set forth three assignments of error in his appeal.
The first assignment was that the trial court had not adequately informed him of the rights he was giving up by entering a plea of guilty. The appellate court reviewed the language used by the trial court and found that although the colloquy didn't quote the language of Crim. R. 11 verbatim, it was sufficient to satisfy the requirements of that Rule, especially considering that Ross also signed a written plea waiver form.
The second assignment of error was that the trial court should have held a hearing on his motion to withdraw his plea. At the change of plea hearing the State was recommending a six month prison sentence on both counts to run concurrently. The trial court expressed reservations about imposing the jointly recommended sentences. At the time of the sentence the trial court imposed two sentences of 11 months to run consecutively. (It should be noted that Ross failed to appear at the first scheduled sentencing hearing.)
The Court of Appeals held that the trial court should have held a hearing since (1) the trial court had equivocated on following the recommendations of the State and (2) because Ross maintained he was not guilty of one of the offenses.
State v. Johnson, 2013-Ohio-3218 affirmed Johnson's conviction by the Summit County Common Pleas Court on one count of cocaine trafficking. Johnson argued on appeal that his conviction was based on insufficient evidence and that the jury verdict was against the manifest weight of the evidence. Both arguments were rejected by the Court of Appeals.
JPMorgan Chase Bank v. Byrd, 2013-Ohio-3217 affirmed a decision of the Summit County Common Pleas Court granting a foreclosure to J.P. Morgan. The homeowners argued that the evidence offered by the Bank to obtain a summary judgment wasn't sufficient. In particular they argued that the bank officer who signed the affidavit wasn't identified in the interrogatories they had sent to the bank and that the officer didn't have personal knowledge of the matters attested to in his affidavit. Both arguments were rejected.
Opinions Released on July 22, 2013
State v. New, 2013-Ohio-3193 reversed a decision by the Lorain County Common Pleas Court on an appeal filed by the State of Ohio. The trial court had found that the State had not justified a 35 year delay in bringing a murder charge against New for the death of a woman he was dating. The appeal involved the issue of pre-indictment delay and New's right to a speedy trial. On an appeal involving pre-indictment delay the appellate court defers to the trial court on issues of fact but reviews the case de novo on the application of the law to the facts. Under that standard the Court of Appeals found that the delay was justified, reversed the decision, and remanded for further proceedings.
State v. Martinez, 2013-Ohio-3189 affirmed Martinez's conviction by the Wayne County Municipal Court for domestic violence. Martinez appealed arguing that his conviction was against the manifest weight of the evidence. The Court of Appeals affirmed the conviction.
Kostyo v. Kaminski, 2013-Ohio-3188 affirmed in part and reversed in part the decision of the Lorain County Common Pleas Court granting a summary judgment to Kaminski. The case involved the transfer of money from Mrs. Kostyo to an account controlled by her sister, Kaminski, and a mutual brother of the two women. When the brother died, Kaminski was the sole owner of the account. The litigation started when Kostyo was alive, but when she died, the litigation was continued by her son who was the estate administrator.
Kostyo appealed arguing that the trial court should have denied Kaminski's motion for summary judgment and should have awarded him summary judgment instead. The Court of Appeals affirmed the trial court's denial of Kostyo's motion for summary judgment. It reversed the trial court's finding that Kaminksi was entitled to summary judgment on the issues of unjust enrichment and conversion. The case was then remanded to the trial court for further proceedings.
State v. Bellomy, 2013-Ohio-3187 affirmed Bellomy's conviction by the Medina County Common Pleas Court for violating a civil protection order, which is a fifth degree felony since Bellomy had been convicted of a previous violation. Bellomy appealed citing four assignments of error. He argued that the trial court erred by not giving a mistake of fact instruction; that it erred by not answering a jury request for a definition of negligence; that it erred by not granting a Crim. R. 29 motion; and that it erred by not granting Bellomy the proper jail time credit.
The Court of Appeals found that Bellomy had not preserved the argument that there should have been a mistake of fact instruction because the record didn't contain a copy of his proposed instruction. It found that when his trial counsel agreed with the trial court's decision not to instruct on negligence he waived all but plain error with respect to that assignment and that plain error didn't apply. It found that the trial court properly overruled his Crim. R. 29 motion, and it found that his assignment regarding jail time credit was moot.
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