Ninth District Court of Appeals Decisions 3/18-3/25/2013

The Court of Appeals for the Ninth Appellate District released seven opinions from March 18 through March 25, 2013. One opinion was released on Monday, March 18, three opinions were released on March 20, and three opinions were released on March 25, 2013.  

The opinion released on March 18 reflected an appeal that was heard by a visiting panel of judges. The decision, State v. Fiscus, 2013-Ohio-1124, involved a pro se defendant who challenged his sentence for d riving under an OVI suspension in violation of R.C. §4510.14. He argued that the sentence was too "harsh". The Court of Appeals found that the sentence was within the statutory limits and denied the appeal. 

The three opinions released on Wednesday, March 20, were the following:

Adam v. Kovitch, 2013-Ohio-1020, which involved the issue of how much weight should be granted to the parent of a child when a non-parent is granted visitation under R.C. 3109.11. That section allows for a non-parent to have visitation with a the relatives of a deceased parent. The Court of Appeals found that the trial court's decision should be affirmed and that its
decision was not against the manifest weight of the evidence. 

The following quote appears in P20 of the opinion: "As noted above, the trial court was authorized to exercise its discretion under R.C. 3109.11 to award reasonable visitation to Lindsay.  Mr. Kovitch again argues that, because he is a fit parent, his opinion is entitled to special weight.  In other words, Mr. Kovitch suggests that unless evidence is submitted that he is not a fit parent, his parental opinion supersedes all the other factors in R.C. 3109.051.  However, this argument does not have legal merit given the trial court’s statutory obligations."

Linnen Co., L.P.A. v. Roubic, 2013-Ohio-1022 deals with issues arising from the arbitration of fee disputes between attorneys under Chapter 2711 of the Ohio Revised Code. The Court of Appeals noted that while that Chapter deals with arbitration pursuant to a contractual agreement, the parties seemed to agree that the Chapter dealt with their dispute, which was a non-contractual arbitration. Therefore, the Court assumed that Chapter 2711 applied for the purposes of its analysis. The Court of Appeals upheld trial court's decision to affirm the arbitration award. At P11 through P17 there is a discussion concerning the application of Prof. Cond. R. 1.5. 

State v. Hoffman, 2013-Ohio-1021 deals with the issues raised by the murder conviction of a father of an infant child. The Court of Appeals upheld the murder conviction of the father who had argued that the trial court erred in allowing joinder of offenses; erred in convicting him of murder; and that the convictions were against the manifest weight of the evidence. 

The three opinions released on Monday, March 25, were the following:

Smith v. Esser & Sons, Inc., 2013-Ohio-1095 deals with the issue of motions for summary judgment and issues of material fact where an employee alleges violation of the statute imposing liability on employers for intentional torts committed against employees. The Court of Appeals held that the trial court erred in granting summary judgment for the employer because there was a issue of material fact whether the employer knew that the employee was "substantially certain" to be injured when the employer assigned the employee to the work site. 

State v. Frum, 2013-Ohio-1096 is a decision reversing the Wayne County Municipal Court's conviction of a defendant for violating Orrville Codified Ordinance No. 351.08. The Court of Appeals reversed but there was a dissent by one of the panel. 

Rogers v. Credit Acceptance Corp., 2013-Ohio-1097 involves whether a trial court can deny a motion for arbitration as a sanction for not complying with a discovery order. The Court of Appeals noted that there is no authority in Ohio dealing with that particular issue. It held, however, that even if a trial court could issue such an order, it was an abuse of discretion to do so in this particular case given the wording of the trial court's order that supposedly compelled the discovery. 

Ohio Supreme Court Decision: Supreme Court Rules Prosecutor’s Conduct Did Not Violate Disciplinary Rules

Supreme Court Rules Prosecutor’s Conduct Did Not Violate Disciplinary Rules

Disciplinary Counsel v. Kellogg-Martin, Slip Opinion No. 2010-Ohio-282.
On Certified Report by the Board of Commissioners on Grievances and Discipline, No. 07-069. The complaint against Kimberly J. Kellogg-Martin, Attorney Registration No. 0022083, is dismissed.
Pfeifer, Lundberg Stratton, O'Connor, O'Donnell, Lanzinger, and Cupp, JJ., concur.
Moyer, C.J., dissents and would impose a 12-month suspension with six months stayed.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-282.pdf

(Feb. 4, 2010) The Supreme Court of Ohio today dismissed a disciplinary complaint alleging professional misconduct by Logan County assistant prosecutor Kimberly Kellogg-Martin. The Court’s decision reversed findings of disciplinary rule violations by the Board of Commissioners on Grievances & Discipline.

In a 6-1 per curiam opinion, the Court concluded that Kellogg-Martin’s acts and omissions in not disclosing the contents of two documents to the defendant in a juvenile rape case did not violate her legal obligations as a prosecutor or her ethical duties as an attorney. The undisclosed documents were reports summarizing the victim’s statements about the crime during interviews with a social worker and a sheriff’s deputy.

The majority opinion was joined by Justices Paul E. Pfeifer, Evelyn Lundberg Stratton, Maureen O’Connor, Terrence O’Donnell, Judith Ann Lanzinger and Robert R. Cupp.

Chief Justice Thomas J. Moyer entered a dissent stating that in his view the majority erred by evaluating Kellogg-Martin’s conduct in light of the state’s rules of criminal procedure and court decisions defining defendants’ due process rights, rather than applying the more rigorous disclosure standard set by Rule 7-103(B) of the Code of Professional Responsibility. The Chief Justice wrote that he would affirm the rule violations found by the disciplinary board and impose the board’s recommended sanction of a 12-month license suspension with six months stayed on conditions.

Contacts
Jonathan E. Coughlan, 614.461.0256, for the Office of Disciplinary Counsel.

Christopher J. Weber, 614.462.5400, for Kimberly Kellogg-Martin.

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