Ninth District Decisions Released on 9/30/2013-10/2/2013

The Court of Appeals for the Ninth Appellate District released a total of 28 opinions during the week of September 30, 2013. Most of those were released on Monday, September 30. Below are my summaries of these opinions:

In re J.W., 2013-Ohio-4368 affirmed a decision from the Summit County Juvenile Court that denied a motion to vacate a prior decision terminating parental rights. In affirming the trial court's decision the Court of Appeals expressly recognized that a parent whose rights have been terminated by collaterally attack that judgment by filing a Civ. R. 60 (B) motion. There is an excellent discussion in the opinion about the interaction of Civ. R. 60 (B) and the continuing jurisdiction of the juvenile court pursuant to R.C. 2151.353(E)(1); R.C. 2151.417(B). Although the Court of Appeals found that the parent could use Civ. R. 60 (B) to try to attack the judgment, the Court found that the parent had not established that she was entitled to relief from Civ. R. 60 (B). 

In re S.H., 2013-Ohio-4380 reversed a decision by the Medina County Probate Court denying a motion to appoint a guardian for S.H. to make medical decisions on her behalf. The decision was made by  the Court of Appeals for the Fifth Appellate District sitting by assignment for the Court of Appeals for the Ninth Appellate District. The case involves the administration of chemotherapy for a minor. The appellate court reversed the Probate Court's decision and remanded the case to the Medina County Probate Court so that it may appoint the guardian to make medical decisions. 

Equable Ascent Fin., L.L.C. v. Ybarra, 2013-Ohio-4283 affirmed in part and reversed in part a decision from the Avon Lake Municipal Court in Lorain County. The issue on the appeal was whether the trial court should have granted a summary judgment motion filed by Equable Ascent and whether it should have dismissed the case on the basis of res judicata. On the assignment of error regarding the granting of the summary judgment motion, the appellate court agreed with Ybarra that there was a question of fact regarding whether Equable owned the account or was a collection agency pursuan to R.C. 1319.12(A)(1). The assignment of error regarding the dismissal of the case on the basis of res judicata was overruled. 

Equable Ascent Fin. v. Ybarra, 2013-Ohio-4282 reversed a decision of the Avon Lake Municipal Court granting Equable Ascent relief from judgment under Civ. R. 60 (B). The appellate decision states that the trial court granted the motion under Civ. R. 60 (B) the same day that it was filed. Ybarra asserted on appeal that the trial court erred by not giving him enough time to respond. The appellate court agreed. The case was reversed and remanded back to the trial court for further proceedings. 

State v. Vargas, 2013-Ohio-4281 affirmed Vargas's conviction in the Lorain County Common Pleas Court for gross sexual imposition. Vargas appealed claiming that his conviction was against the manifest weight of the evidence, that the evidence was insufficient to convict him, and that the trial court had sentenced him for a different subsection of R.C. 2907.05 than the one for which he was indicted. All three assignments of error were overruled. 

State v. Valle, 2013-Ohio-4280 affirmed a decision of the Lorain County Common Pleas Court dismissing the charge against Valle. The charge was dismissed because Valle had successfully completed a diversion program created by the Lorain County Common Pleas Court. The appellate opinion noted that the Lorain County Common Pleas Court stated in its journal entry that the charge against Valle was being dismissed pursuant to R.C. 2951.041(E). (That section of the Revised Code concerns the dismissal of charges pursuant to the completion of an intervention in lieu of conviction program.) The Court of Appeals noted that the State did not address R.C. 2951.041(E) in its brief or whether the trial court had not acted pursuant to that section. Therefore the dismissal was affirmed. 

State v. Tulk, 2013-Ohio-4279 reversed a conviction by the Avon Lake Municipal Court for improper passing on the right. The Court of Appeals found that the evidence did not establish the violation of the municipal ordinance with which Tulk was charged. The conviction was reversed and the case remanded for further proceedings. 

Deutsche Bank Natl. Trust Co. v. Taylor, 2013-Ohio-4278 reversed in part and sustained in part an appeal from the Summit County Common Pleas Court. The trial court was reversed because it granted a summary judgment to a former counsel for Deutsche Bank who had been named in Taylor's counter-claim. The Court of Appeals held that while the Bank could move for summary judgment on Taylor's counterclaim, it could not move for summary judgment on behalf of its former counsel. In support of its ruling the appellate court cited to Civ. R. 56 (B). All other assignments of error were overruled. 

Szymczak v. Tanner, 2013-Ohio-4277 affirmed a decision of the Medina County Common Pleas Court, Domestic Relations Division, that restored the mother's original shared parenting time. The order came after the Court of Appeals had reversed the trial court and ordered that the mother's original parenting time be reinstated. In this appeal the court of appeals found that the law of the case required that three of the father's assignments of error be overruled. The appellate court also found that the trial court was not required to take further evidence in order to comply with the appellate court's prior order. 

State v. Simpson, 2013-Ohio-4276 affirmed the conviction of Simpson for several felonies by the Lorain County Court of Common Pleas. Simpson listed several assignments of error in his appeal. Simpson's assignments of error included improper consolidation of charges, improper admission of Evid. R. 404 (B) evidence, improper instruction regarding complicity, and the verdicts were against the manifest weight of the evidence. All assignments of error were overruled. 

State v. Ruoff, 2013-Ohio-4275 affirmed a decision of the Lorain County Common Pleas Court dismissing a felony charge after Ruoff had completed the Court's diversion program. The State appealed the dismissal arguing that the Court's diversion program was set up without statutory authority and that the establishing of a diversion program by the Court is a violation of the doctrine of separation of powers. The Court of Appeals affirmed the Common Pleas Court for the same reasons set forth in State v. Valle, supra. 

State v. Reid, 2013-Ohio-4274 reversed a decision from the Lorain County Court of Common Pleas suppressing evidence in a felony prosecution. The trial court had held that the fact that a trained drug dog "hit" on the vehicle did not give the officer stopping the vehicle a reasonable basis to search the entire vehicle. In particular Reid argued that once the Ohio State Highway Patrol Trooper had searched the passenger compartment and did not find any drugs, a search of her trunk was not justified. The Court of Appeals reversed noting that in recent decisions it had held that a trained drug dog "hitting" on a vehicle gave the police probable cause to search the entire vehicle. 

State v. Ocasio, 2013-Ohio-4273 affirmed a decision of the Lorain County Common Pleas Court dismissing charges after Ocasio completed the Court's pre-trial diversion program. This decision involved the same issues as State v. Valle, supra. 

State v. Miles, 2013-Ohio-4272 affirmed a decision of the Medina County Common Pleas Court denying a motion to suppress evidence. Miles argued that the trial court took too long to hear and decide the motion before denying it. The Court of Appeals disagreed. 

State v. Meadows, 2013-Ohio-4271 affirmed a decision from the Summit County Court of Common Pleas convicting Meadows of murder and imposing a 15 to life sentence. Meadows argued that the trial court should have give a self-defense instruction and also instructed on lesser included offenses. That assignment of error was overruled. Meadows argued that the trial court relied on incompetent evidence in the form of written reports when finding him competent to stand trial. The Court of Appeals overruled that assignment noting Meadows had had an opportunity to object to the reports but chose not to do so and waived that argument. Meadows argued that the sentencing statute regarding the charge of murder was unconstitutional. That argument was rejected. Finally he argued ineffective assistance of counsel. That argument was also rejected. 

State v. Manacapilli, 2013-Ohio-4270 reversed a decision from the Wayne County Municipal Court finding Manacapilli guilty of speeding. The Court of Appeals found that the Municipal Court had violated the speedy trial requirements of R.C. 2945.71, et seq when it failed to bring Manacapilli to trial within 30 days of the charge being certified by the Mount Eaton's Mayor's Court. 

In re M.T., 2013-Ohio-4269 affirmed a decision of the Wayne County Court of Common Pleas, Juvenile Court Division, denying a step-father's motion for legal custody and terminating the mother's parental rights. The mother argued that the Children's Services Board had failed to show by clear and convincing evidence that it was in the best interests of the child to grant it legal custody and  that the finding was against the manifest weight of the evidence. The step-father argued that the CSB failed to prove by a preponderance of the evidence that a denial of a change of custody to him was in the best interest of the child and that the trial court erred in denying him custody because of his marijuana use. All assignments of error were overruled. 

State v. Hess, 2013-Ohio-4268 affirmed Hess's conviction for driving while under the influence of alcohol and failure to control in the Wayne County Municipal Court. Hess argued that the evidence was insufficient for the trial court to have convicted him following his trial to the bench. He also argued that the trial court improperly admitted testimony in violation of his right against self-incrimination and his right to the advice of any attorney. Both assignments of error were overruled. 

State v. Greer, 2013-Ohio-4267 affirmed Greer's conviction for a felony offense of driving while under the influence of alcohol in the Summit County Common Pleas Court. Greer alleged that his attorney was ineffective and that the trial court improperly admitted evidence of his prior convictions in that the entries used to establish his prior convictions did not comply with Crim. R. 32. Both arguments were rejected by the Court of Appeals. 

Green v. Full Serv. Property Inspections, L.L.C., 2013-Ohio-4266 affirmed the granting of a summary judgment to the defendants by the Barberton Municipal Court. The Court of Appeals found by a 2-1 vote that the motion was properly granted on both the breach of contract claim and the claim based on the Ohio Consumer Sales Practice Act. The majority found that the Greens did not present Civ. R. 56 evidence that established a material issue of fact. Judge Carr, in her dissent, wrote that while the affidavits submitted by Mr. and Mrs. Green were not based on personal knowledge and contained hearsay, the defendants did not object to the affidavits. Therefore, based on prior decisions from the Court of Appeals, the trial court should have considered them and found that there was a material issue of fact. 

R.C. v. J.G., 2013-Ohio-4265 affirmed the granting of a civil stalking protection order by the Medina County Common Pleas Court. J.G. alleged that the evidence was insufficient, that the trial court abused its discretion in setting forth the terms of the order, and that the magistrate's decision was not sufficient to allow the trial court to adopt it. All assignments of error were overruled. 

Galloway v. Firelands Local School Dist. Bd. of Edn., 2013-Ohio-4264 reversed a decision of the Lorain County Common Pleas Court and remanded the case back to that court with instructions to dismiss the case. The reason for the reversal and remand was that the School Board had not entered a final order and therefore the trial court did not have jurisdiction to hear the administrative appeal. 

State v. Farrey, 2013-Ohio-4263 affirmed Farrey's convictions for drug possession by the Summit County Court of Common Pleas. Farrey alleged that his lawyer was ineffective and that his convictions were against the manifest weight of the evidence. Both arguments were rejected by the appellate court. 

Darno v. Davidson, 2013-Ohio-4262 reversed a decision by the Summit County Common Pleas Court granting a summary judgment to Westfield Insurance Company in an uninsured motorist case. The issue material fact found by the Court of Appeals concerning the definition of the term "occupying" the covered auto in a clause excluding coverage. The case was remanded for further proceedings. 

State v. Burgin, 2013-Ohio-4261 affirmed the conviction of Burgin by the Lorain County Common Pleas Court. Burgin assigned as error the denial of his motion to suppress by the trial court. The Court of Appeals found that the denial of the motion was proper. 

State v. Boden, 2013-Ohio-4260 affirmed Boden's convictions for several sex offenses by the Summit County Common Pleas Court. Boden alleged three assignments of error. One was that the evidence was not sufficient to convict him of the offenses. The second was that the trial court erred in denying his motion for a mistrial. The third was that the trial court erred in not granting his motion to sever the charges. All three assignments were overruled. 

Apple Group Ltd. v. Granger Twp. Bd. of Zoning Appeals, 2013-Ohio-4259 affirmed a decision of the Medina County Common Pleas Court finding that the proposed development by Apple Group of land it owned in Granger Township violated the township zoning resolution and that the zoning resolution was constitutional. Apple appealed alleging four assignments of error. The first and second assignments of error were that trial court erred in finding that the township had adopted its zoning resolution in accordance with a comprehensive plan. The third assignment of error was that the trial court erred in not finding that township had exceeded its statutory zoning powers when it adopted its resolution. The fourth assignment of error was that the trial court erred when it found that the zoning resolution was constitutional as it applied to the Apple Group property. A majority of the court overruled all four assignments of error, but Judge Belfance dissented. 

State v. Adams, 2013-Ohio-4258 affirmed Adams' conviction for operating while under the influence of alcohol. Adams claimed on appeal that the trial court erred in finding that there was probable cause to arrest and that the trial court erred in admitting three prior convictions for OMVI when only one conviction was required to prove that Adams had a prior conviction within the past 20 years. Both assignments of error were overruled. Judge Moore concurred in the result reached by the Court of Appeals but for different reasons.