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.