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. 

Ninth District Opinions for July 17, 2013

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. 

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. 

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. 

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. 

Ninth District Opinions Released on June 19, 2013

The Court of Appeals for the Ninth Appellate District released two opinions on June 19, 2013. Both were appeals from the Summit County Common Pleas Court. One case was a criminal case and the other was a civil case. 

The criminal case was State v. Stull, 2013-Ohio-2521, which was an appeal from the trial court's denial of a petition for post-conviction relief. The Court dismissed the appeal for lack of a final appealable order. The Court noted that  a trial court must issue findings of fact and conclusions of law when ruling on a petition for post-conviction relief. If the entry doesn't contain such findings and conclusions the Court of Appeals lacks jurisdiction to consider the appeal. Since the trial court did not make such findings of fact and conclusions of law, the appeal was dismissed for lack of a final appealable order. 

The civil case was Jackovic v. Webb, 2013-Ohio-2520  in which Mr. and Mrs. Jackovic appealed from the trial court's denial of their motions for a directed verdict, for a judgment notwithstanding the verdict, and for a new trial. They also argued that the verdict was against the manifest weight of the evidence. 

The Jackovics argued that the trial court should have directed a verdict in their favor on the issue of whether the defendant's negligence caused medical bills for emergency medical care. The Court of Appeals agreed with this argument. They also argued that the trial court should have directed a verdict on the issue of whether the defendant's negligence caused medical bills for treatment following the day of the accident. The Court of Appeals rejected this argument stating that on that issue reasonable minds could come to different conclusions. Since it had reversed in part and affirmed in part on that assignment of error the Court of Appeals reversed and remanded. 

On the motion for a judgment notwithstanding the verdict the Court found that its resolution of the first assignment of error rendered that assignment of error moot. The motion for a new trial was based on three subsections of Civ. R. 59. On the two arguments involving Civ. R. 59 (A) (7) and (9) the appellate court affirmed the trial court's decision overruling the motion. On the argument involving Civ. R. 59 (6) the appellate court found that its decision on the first assignment of error rendered that assignment moot. The Court also found that the assignment of error that the verdict was against the manifest weight of the evidence was also moot. 

Ninth District Opinions Released on June 12, 2013

The Court of Appeals for the Ninth Appellate District released six opinions on June 12, 2013. All the opinions were for appeals from Summit County cases. My summaries of the opinions appear below. 

Wilfong v. Petrone, 2013-Ohio-2434 was an appeal from a decision of the Summit County Common Pleas Court granting the defendants a summary judgment. The sole assignment of error was that the trial court was wrong in finding for the defendants on the allegations of breach of contract, fraud, and recission. The complaint was based on a contract between the parties for the purchase of a home. The plaintiffs claimed that they were not told the extent of water intrusion into the home prior to buying it. The Court of Appeals found that the observations of the plaintiffs prior to buying the home as well as disclosure by the defendants in their real estate sale documents were sufficient to put the plaintiffs on notice as to the existence of the water problems in the home's basements. Therefore the trial court was affirmed. 

State v. Turner, 2013-Ohio-2433 affirmed a decision of the Summit County Common Pleas Court convicting the defendant of theft and misuse of credit cards. The opinion by Judge Carr contains an interesting discussion of the difference between the sufficiency of the evidence, which is the issue when a Crim. R. 29 motion is made, and the weight of the evidence. Citing to Ohio Supreme Court opinions Judge Carr points out that when the issue is the sufficiency of the evidence the question is whether the State met is burden of production. When, however, the issue is the manifest weight of the evidence the question is whether the State met its burden of persuasion. 

Tillman v. Hyde Park Condominium #3 Owners’ Assn., 2013-Ohio-2432
reversed a decision from the Summit County Common Pleas Court granting attorney fees to the Owner's Association. The appellate court found that the trial erred when adopting findings of its magistrate because it didn't conduct an independent review as required by Civ. R. 53. Tilman's attorney did not file a transcript with her objections to the magistrate's decision but did file an affidavit. Judge Carr's opinion found that the affidavit was not sufficient because the rule requires a transcript if one is available. Here one was available,but not filed, and therefore the affidavit could not be used as a substitute. When a transcript is not filed, then the trial court must accept the magistrate's factual findings but must still conduct an independent review of the magistrate's legal conclusions. In this case that was not done, so the decision was reversed. 

Magnum Steel & Trading, L.L.C. v. Mink, 2013-Ohio-2431 affirmed in part and reversed in part a decision from the Summit County Common Pleas Court. Mink argued that the trial court should have granted its motion for summary judgment, that the trial court erred when it didn't grant its motion for a directed verdict and for judgment notwithstanding the verdict and that the jury verdict was against the manifest weight of the evidence. All of those assignments of error were overruled. Magnum's assignments of error were that the trial court should have granted its motion for judgment notwithstanding the verdict apparently on the basis that the jury verdict in its favor on an unjust enrichment claim was inadequate. That assignment of error was rejected. Magnum also argued that the trial court erred in denying a motion for prejudgment interest on its verdict for promissory estoppel. That assignment of error was sustained. 

State v. Hendrix, 2013-Ohio-2430 reversed a decision from the Summit County Common Pleas Court granting a motion to suppress. The Court of Appeals found that the entry of the police into the defendant's home was justified due to exigent circumstances which were that the police were responding to an emergency. In this case the appellate court found that the exception applied and reversed the trial court's decision. 

State v. Hayes, 2013-Ohio-2429 affirmed a decision of the Summit County Common Pleas Court convicting the defendant of multiple counts of felonious assault, having weapons under a disability, improperly discharging a firearm into a habitation, and possession of heroin. The defendant was also convicted of firearm specifications attached to the various counts. He received 18 years in prison. He appealed alleging that the felonious assault convictions were against the manifest weight of the evidence and that the trial court should have found that more offenses were merged for purposes of sentencing. The appellate court rejected both assignments of error. 

Ninth District Opinions Released on June 3 and June 5, 2013

The Court of Appeals for the Ninth Appellate District released two opinions from Lorain County on June 3, 2013 and four opinions from Summit County on June 5, 2013. The opinions released on June 3, 2013 were:

Wells Fargo Bank N.A. v. Horn, 2013-Ohio-2374 was a reversal of a summary judgment granted by the Lorain County Common Pleas Court. The issue in the case was whether the bank had shown that it had the right to file the lawsuit when it filed the complaint. The Court of Appeals reversed on the authority of Fed. Home Loan Mtge. Corp. v. Schwartzwald, 2012-Ohio-5017 at P40. The Court of Appeals remanded the case back to the trial court with instructions to dismiss the complaint without prejudice. 

Wright v. Ohio Dept. of Job & Family Servs., 2013-Ohio-2260 affirmed a decision of the Lorain County Common Pleas Court that affirmed a decision of the Unemployment Compensation Review Commission that denied Mr. Wright unemployment compensation. The Commission found that Wright had quit his job as a truck driver without just cause when he left his truck at his employer's terminal in Seville, Ohio and told his employer he would not drive for the company if it would not give him a local route. 

The opinions released on June 5, 2013 were:

State v. Novotny, 2013-Ohio-2321 affirmed a decision of the Summit County Common Pleas Court that convicted Mr. Novotny of interference with custody of a juvenile who had left her home and moved in with Mr. Novotny. Originally he was charged with unlawful sexual conduct with a minor and the interference with custody. The jury found him not guilty of the unlawful sexual conduct but guilty of the interference with custody. The Court of Appeals rejected all assignments of error raised by Mr. Notovny. 

McFall v. McFall, 2013-Ohio-2320 reversed a decision of the Summit County Common Pleas Court, Domestic Relations Division. The issue on appeal was whether the trial court should have held a hearing on the wife's motion to vacate under Civ. R. 60 (B). While the majority found that the trial court should have held a hearing and found that the wife had raised the issue in a reasonable period of time, the dissent found that the issue could have been handled on a direct appeal and therefore the trial court did not have to hold a hearing on the 60 (B) motion. 

State v. Harmon, 2013-Ohio-2319 affirmed a decision of the Summit County Common Pleas Court convicting Mr. Harmon of several criminal charges. In his assignments of error Mr. Harmon argued that the trial court erred in allowing evidence of battered woman's syndrome because there was no established pattern of domestic violence. The Court of Appeals rejected this argument, as well as the remaining assignments of error. 

Clayton v. Walker, 2013-Ohio-2318 affirmed a decision of the Summit County Court of Common Pleas, Domestic Relations Division which had issued a temporary restraining order through a magistrate. Mr. Walker apparently filed objections to the magistrate's order in another related case. The trial court took judicial notice of those objections, considered them, and overruled them. The Court of Appeals held that the trial court could not take judicial notice of the objections filed in the other case and held that Mr. Walker had never objected in the case that was on appeal. 

Since he hadn't filed objections under that case number, the appellate court held that the trial court had no authority to even consider the objections to the magistrate's order and affirmed the issuing of the order. There was a dissent by Judge Carr in which she argued that the trial court had the power to review the magistrate's decision and she believed that the appellate court could review that decision. 

Ninth District Opinions for May 22, 2013

The Court of Appeals for the Ninth Appellate District released six opinions for cases that were appeals from Summit County on May 22, 2013. The cases are:

State v. Wingate, 2013-Ohio-2079 affirmed the conviction of Wingate by the Summit County Common Pleas Court. Wingate had appealed arguing that her conviction was against the manifest weight of the evidence; that the trial court should have granted her Crim. R. 29 motion for directed verdict; that the trial court impermissibly commented on the veracity of one of the witnesses when sustaining an objection during closing argument; and that the prosecutor had made improper remarks during the State's closing argument. The Court of Appeals overruled all of Wingate's assignments of error. 

State v. Thomas, 2013-Ohio-2078 reversed and remanded a decision from the Summit County Common Pleas Court that had denied his motion to vacate post-release control. The Common Pleas Court had imposed an indefinite period of post-release control instead of the mandatory five year period. The Court of Appeals held that under State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, a defendant may raise the issue of improper imposition of post-release control at any time and that the trial court should have vacated the post-release control even though Thomas had served his prison sentence. 

State v. McIntyre, 2013-Ohio-2077 affirmed a decision from the Summit County Common Pleas Court that denied nine motions that McIntyre had filed following his conviction. The Court of Appeals noted that McIntyre had filed "countless motions and numerous appeals" in affirming the trial court's ruling on the nine motions. 

Green v. Helms, 2013-Ohio-2075 affirmed a decision from the Summit County Common Pleas Court that had granted the City of Green's motion for summary judgment. The trial court found that Helms' outdoor storage of business materials was prohibited by the city's zoning code. By a 2-1 decision the Court of Appeals agreed with the trial court. 

Ninth District Opinions from May 15, 2013

The Court of Appeals for the Ninth District Court of Appeals released the following opinions on May 15, 2013:

In re A.S., 2013-Ohio-1975 was a decision released from the Summit County Juvenile Court reversing a decision that awarded children to relatives of the appellant. The appellant had assigned three grounds for error by the trial court but the Court of Appeals found that one of them was dispositive. The appellate court held that the trial court abused its discretion by not holding a hearing on the appellant's motion for a change of disposition. The case was remanded for further hearings. 

In re B.S., 2013-Ohio-1976 was also a decision released on an appeal from a decision of the Summit County Juvenile Court. The opinion affirmed in part and reversed in part. 

The appellate court found that the trial court had erred when its magistrate determined the amount of money that the father made. The appellate court held that while the magistrate had extrapolated from the father's hourly wage what his annual income was, the father had testified that his hours varied. Therefore the Court of Appeals held that the trial court should have examined one calendar year's worth of wages. The Court of Appeals also found that the trial court erred when awarding the tax exemptions for both children to the father. 

State v. Oliver, 2013-Ohio-1977 was a decision on an appeal from the Summit County Court of Common Pleas in a criminal case. The appellate court reversed and remanded. It found that the trial court committed reversible error when it examined the attorney who had represented the appellant during the case and also was with him at the hearing to withdraw his plea. The trial court examined the attorney itself and didn't allow the appellant an opportunity to examine him through different counsel. The appellate court reversed and remanded with directions that the trial court appoint a new attorney for the appellant. 

Third Fed. Sav. & Loan Assoc. of Cleveland v. Schlegel, 2013-Ohio-1978 reversed and remanded a judgment in favor of Third Federal. Schlegal argued that the trial court had erroneously granted a summary judgment to Third Federal because there were material issues of fact regarding whether Third Federal had the right to accelerate on the note and foreclose of the property. 
The Court of Appeals found that there was a factual issue of whether there was a default on the note. The decision reversed and remanded for further proceedings. 

Ninth District Court of Appeals Opinion Released May 6, 2013

 Baker v. Nationwide Mut. Ins. Co., 2013-Ohio-1856 is a decision reversing in part and affirming in part a decision from the Summit County Common Pleas Court. The decision, which was released on May 6, 2013, concerns a motion for summary judgment that was granted by the trial court. The main issue in the case involved the construction of an insurance policy. 

The decision sets forth the facts as follows:

"Mr. Baker owns several rental properties that he insured with Nationwide. In March 2007, the water pipes at an unoccupied multi-unit property burst, causing damage to the building. Following the incident, Mr. Baker made repairs to the water lines in the basement and to drywall on the first floor. Before finding new tenants, he decided to fix other parts of the property as well. Between March 2007 and June 2010, he repaired or replaced the front porch flooring, the roof on the back porch, ceiling tiles throughout the building, a broken toilet, drywall and carpeting. He also did some painting. He intended to replace one of the hot water tanks and complete some other repairs, but sometime between June 8 and June 15, thieves broke into the property and stripped it of its copper plumbing and fixtures. 

Mr. Baker reported the break-in to the police and filed a claim with Nationwide. Nationwide denied the claim, however, because it determined that the property had been “vacant for more than 60 consecutive days[.]” After receiving Nationwide’s decision, Mr. Baker sought a declaratory judgment that the damage is covered because, under his policy, “[b]uildings under construction or renovation are not considered vacant.” He also sued Nationwide and the adjuster who processed his claim for damages for allegedly acting in bad faith. 

The trial court dismissed Mr. Baker’s claim against the adjuster because it determined that he had failed to state a claim for relief under Civil Rule 12(B)(6). Following discovery, Nationwide and Mr. Baker filed cross-motions for summary judgment. The court granted Nationwide’s motion because it determined that Mr. Baker had not repaired the 2007 damage “as quickly as possible,” which it concluded was required under his policy and because his intermittent repairs to the other parts of the property did not constitute “construction or \renovation.” "

The Court of Appeals affirmed the decision of the trial court to dismiss the claim against the adjuster for bad faith pursuant to Civ. R. 12 (B) (6).  In affirming the dismissal the Court of Appeals noted that the obligation to act in good faith toward insureds is based on the contractual relationship between the insurance company and its policyholder. There is no such contractual relationship between an individual adjuster and a policyholder. Thus the duty arises out of the contractual relationship. Since adjusters and policyholders don't have such a relationship, there is no duty, and hence no tort. 

The Court of Appeals, however, reversed the granting of Nationwide's motion for summary judgment. In so doing the Court of Appeals noted that the language that was relied on by the trial judge was not a condition precedent to recovery but was language that limited the amount that could be recovered. In the words of the decision: "Mr. Baker’s duty to resume operations “as quickly as possible” after a loss was not a condition precedent to coverage, but a duty bearing on the amount of his recovery."

Ninth District Court of Appeals Opinion for May 1, 2013

The 11 decision issued by the Court of Appeals for the Ninth Appellate District were:

Ohio Metal Servs., L.L.C.v. TrueForge Mach. Corp., 2013-Ohio-1776 which is a appeal from a decision of the Summit County Court of Common Pleas. TrueForge appealed the granting of a motion notwithstanding the verdict to Ohio Metal Services. The Court of Appeals affirmed the trial court's decision.

The facts, as stated by Judge Hensal in her opinion, are as follows:

TrueForge offered to buy a 2000- to 2500-ton forging press from Ohio Metal for  $150,000. Ohio Metal accepted its offer, but the parties later disagreed over whether TrueForge  had the right to inspect the press before completing the sale. After TrueForge refused to pay for the press, Ohio Metal sued it for breach of contract, quantum meruit, promissory estoppel, and specific performance. At trial, a jury found that TrueForge breached the contract, but it awarded Ohio Metal no damages. Ohio Metal moved for judgment notwithstanding the verdict, arguing that, since TrueForge breached the contract, it was entitled to $150,000. It also moved for a new trial and specific performance. The trial court granted Ohio Metal’s motion for judgment notwithstanding the verdict. It awarded $150,000 to Ohio Metal and awarded the press to TrueForge. The court “conditionally granted” Ohio Metal’s motion for new trial in the event that its ruling on the motion for judgment notwithstanding the verdict was overturned. It denied the motion for specific performance.

During the trial the parties agreed that if there was a verdict in favor of Ohio Metal the contract would be enforced. The issue on appeal was whether Ohio Metal was entitled to receive the value of the contract. TrueForge argued that Chapter 1302 of the Ohio Revised Code a seller of "goods" doesn't have a cause of action for specific performance. A seller does, however, have an action for the price of the goods that it contracted to sell under R.C.  1302.83(B). Under that section a seller can recover the price of goods contracted but not paid for, but has to hold any goods that were due under the contract and that have not yet been tendered. This is so that they can be transferred to the buyer once the buyer pays the price of the goods.  

In this case the Court of Appeals noted that since the parties had agreed that the contract would be enforced if there was a verdict for Ohio Metal, TrueForge had waived any error that the trial court may have committed in applying R.C. 1302.83(B).

State v. Strebler, 2013-Ohio-1775 is a decision affirming a DUI conviction out of the Summit County Common Pleas Court. Mr. Strebler argued that the evidence offered by the State at trial was not sufficient to show beyond a reasonable doubt that he was under the under the influence of alcohol when his vehicle was involved in a collision. The Court of Appeals noted that there was testimony from a toxicologist that whether Mr. Strebler was impaired would depend on his tolerance to the drugs that were in his system. The Court of Appeals pointed out that what is at issue in a DUI trial is whether the ability to operate a motor vehicle was impaired not whether the actual operation was impaired.  Using that analysis the appeals court found that the conviction should be affirmed.

Rubber City Arches Graham,L.L.C. v. Joe Sharma Properties, L.L.C., 2013-Ohio-1773 is a decision on an appeal from a decision of the Summit County Court of Common Pleas that held that Rubber City Arches had an easement over property that was owned by Joe Sharma Properties. Although both parties appealed the Court of Appeals only ruled on the assignment of error brought by Joe Sharma Properties.

The appeal concerned whether the trial court had considered the argument advanced by Joe Sharma Properties that the right in its land was a license and not an easement. Since the trial court did not consider this argument, the Court of Appeals remanded the case back to the trial court. Since the case was remanded on the appellant's assignment of error, the appellate court held that the assignment of error raised by the Rubber City Arches was not yet ripe for consideration.

State v. Rye,2013-Ohio-1774 is a decision involving a criminal appeal from the Summit County Common Pleas Court. In 2010 Mr. Rye was convicted of several crimes by plea. He was sentenced to six years in prison pursuant to a plea bargain but failed to appear for the execution of the sentence. A warrant was issued and he was apprehended.

Judge Gallagher, who was the judge who took the plea and imposed the sentence, vacated the prior sentencing entry and gave Mr. Rye 10 years in prison. The re-sentencing journal entry was signed by a judge other than Judge Gallagher. Rye then appealed the re-sentencing on the grounds of double jeopardy and the Court of Appeals for the Ninth Appellate District affirmed the appeal. He then filed a motion asking the trial court to "alter, amend, or vacate" a void judgment. His argument was that since the re-sentencing entry had been signed by a judge other than Judge Gallagher it was void under Crim. R. 11.

The Court of Appeals rejected this argument. The Court of Appeals affirmed the trial court's decision denying the motion on two grounds. The first was that if the appellate court treated the motion as a motion for post-conviction relief, it was not timely filed since it was filed later than 180 days after the trial transcript was filed in the court of appeals on his 2010 appeal. Since review of a denial of a petition for post-conviction relief is done under an abuse of discretion standard, and since the appellate court did not find such abuse, it could not overturn the trial court's decision.

The second ground was whether the resentencing journal entry had to be signed by Judge Gallagher. That issue is an issue of law and an appellate court reviews such an issue under de novo standard. Applying that standard the Court of Appeals found no error of law. It held that under prior decisions it had found that a sentencing entry which imposes a pronounced sentence is a "ministerial act" and can be done under Crim. R. 25 by a judge other than the judge who pronounced the sentence. Although Crim. R. 25 lists reasons why a judge other than the trial judge can sign the entry, it was up to Mr. Dye to show that those reasons didn't apply because an appellate court presumes regularity in a trial court's procedures. Mr. Dye didn't overcome that presumption.

State v. Romanda,2013-Ohio-1771 is a decision affirming a trial court's denial of a petition for post-conviction relief. Mr. Romanda alleged four assignments of error in his appeal, but since he had only mentioned two of them in his petition for post-conviction relief, the Court of Appeals held that it didn't have to review the other two assignments of error.

The two assignments reviewed were whether the trial court erred in not merging certain offenses when it sentenced him and whether it failed to give him a "full hearing" on his petition. The Court of Appeals held that the merger issue could have been addressed on his direct appeal from the sentence and since it wasn't raised, the issue was waived. It also held that since Mr. Romanda didn't file his petition within the time limits established by R.C. 2953.21, the trial court did not abuse its discretion in denying the motion without a "full hearing." The Court of Appeals then affirmed the trial court's decision.

Biondi v. Oregon Homes,L.L.C., 2013-Ohio-1770 is a decision affirming an order from the Summit County Common Pleas Court denying a motion to compel arbitration. The decision contains a discussion regarding the applicability of arbitration agreements and the scope of such agreements. In this case the Court of Appeals found that the arbitration agreement didn't include the particular dispute between the plaintiffs and Oregon Homes. Since the dispute at issue wasn't covered by the agreement, the trial court acted properly in denying the motion to compel.

State v. Harmon,2013-Ohio-1769 is a decision affirming a decision of the Summit County Common Pleas Court not to merge certain offenses committed by Mr. Harmon. The issues are stated by Judge Belfance in her opinion at P14: "Specifically, Mr. Harmon argues that count five of kidnapping and count seven of felonious assault should have merged and that count seven of felonious assault and count eight of domestic violence should have merged." The Court of Appeals did not agree with Mr. Harmon's arguments regarding the merger of the above named offenses. The decision contains a discussion of why the Court of Appeals believed that the offenses should not have merged.

State v. Ford,2013-Ohio-1768 is a decision vacating a sentence and remanding for a new sentencing hearing. The issue on appeal was whether a trial court could deviate from an agreement that was made at the time of the change of plea between the State and Mr. Ford regarding the amount of restitution owed by Mr. Ford. The agreement was that Ford would pay restitution only for the amount of checks he had received from a dealer to whom he had sold a coin and stamp collection that he stole from a person who was hospitalized. At the change of plea hearing the prosecutor stated that she believed that the amount of restitution ordered was "around $10,000.00."  The trial judge ordered that the pre-sentence investigation determine what the total amount of those checks. The report revealed that the total amount was $12,425.00.

At the sentencing hearing, however, the trial judge ordered restitution in the amount of $76,425. Ford appealed that decision arguing that the trial court could not order restitution greater than the theft limits of the third degree felony for which he was sentenced. The Court of Appeals agreed with that argument and ordered a resentencing hearing. Before the hearing could take place, however, the trial court put on another entry stating that since Ford had not objected at the sentencing hearing to the restitution amount that he had essentially waived that argument and then ordered restitution in the amount of $24,999.99.

It was that second order that was vacated by the appellate court. The Court of Appeals held that since the trial court had not given notice that it didn't intend to follow the plea bargain agreement Ford did not enter a knowing plea. The Court of Appeals noted that while a plea bargain agreement between the State and a defendant does not necessarily bind a trial court, that a trial court has to give notice if it finds that it should not follow the agreement. Since this wasn't done, the sentence was vacated.

State v. Dawson,2013-Ohio-1767 is a decision affirming a denial of a motion to resentence a defendant made by the Summit County Common Pleas Court. The issue in the appeal involved whether a sentencing entry that allegedly fails to comply with Crim. R. 32 is a void sentence as opposed to a appealable sentence.

The Court of Appeals noted that the sentence was not a void sentence since the Summit County Common Pleas Court had subject matter jurisdiction. The Court of Appeals also noted that the errors that were allegedly made in the sentencing entry could have been reviewed on a direct appeal at the time that the sentence was entered. Since a direct appeal was not taken, the Court of Appeals held that the error could not be reviewed because of the doctrine of res judicata.

State v. Collmar,2013-Ohio-1766 is a decision affirming Mr. Collmar's conviction for one count of felonious assault, one count of felony domestic violence, and one count of misdemeanor domestic violence. He assigned three errors. One was that the trial court erred in denying his motion for a Crim. R. 29 acquittal, the second was that the trial court erred because his conviction was against the manifest weight of the evidence, and the third was that the trial court acted vindictively when it sentenced him.  Mr. Collmar alleged that he was sentenced to prison because he had gone to trial and that the prison sentence also followed remarks he made during allocution.

The Court of Appeals rejected all three assignments of error. With regard to the issue of whether the sentence was vindictive the Court noted that a decision out of the Court of Appeals for the Seventh District, State v. Mayle, 2005-Ohio-1346 in paragraphs 44 & 45 contained a very good discussion on why defendants may not be punished for exercising their right to trial. The Court of Appeals went on to note, however, that the trial judge explicitly rejected a suggestion by the State that he should be punished for refusing a deal before trial. Further the Court found that there were ample reasons for the trial judge to order a prison sentence. Therefore the appellate court found no evidence of vindictiveness.

Ciszewski v. Kolaczewski,2013-Ohio-1765 is a decision affirming the granting of a motion for summary judgment by the Summit County Court of Common Pleas. The case involved a dispute over an inheritance. Originally the case was settled, but the appellants later filed a lawsuit seeking damages for intentional interference with an expected inheritance, damages for conversion of assets from the estate by the fiduciary, and for the establishment of a constructive trust. The trial court granted summary judgment on all claims.

The decision contains discussion regarding the tort of intentional interference with an inheritance and a discussion of the creation of a fiduciary relationship. On the legal issues the Court of Appeals found in favor of the appellee.

The appellants also raised the issue that the trial court incorrectly relied on evidence that was not in compliance with Civ. R. 56. The evidence was in the form of handwritten letters. The appellants moved to strike the letters. Without ruling on the motion to strike the trial court granted the motion for summary judgment.

The Court of Appeals noted that it reviews orders granting motions for summary judgment on a de novo standard. Applying that standard the appellate court found that the admission of the letters was harmless error.

Ninth Appellate District Opinions from Summit County for 4/17-4/24/2013

The Court of Appeals for the Ninth Appellate District released seven decisions from Summit County during the week of April 17 through April 24, 2013. The decisions were as follows:

State v. Carano, 2013-Ohio-1633, issued on April 24, 2013, affirmed the conviction of the Mr. Carano for a felony offense of operating a motor vehicle while under the influence of alcohol. Mr. Carano alleged several assignments of error. He alleged error in the trial court's refusal of his motion for a mistrial; in denying his motion for suppression of evidence; in convicting him of the misdemeanor offenses of failure to stay within his lane of travel; in finding that there was sufficient evidence to try this case as a fourth degree felony; and in finding that there was sufficient evidence to convict him of driving while under the influence. The Court of Appeals rejected each assignment of error and affirmed the conviction. 

Katherine's Collection, Inc. v. Kleski, 2013-Ohio-1530, issued on April 17, 2013, dismissed the appeal on the grounds that the order was a not a final, appealable order. The Court of Appeals held that the order was not a final order and then it examined whether the appeal was a proper interlocutory appeal under R.C. 2505.02(B). The appellants had argued that the trial court's order could be reviewed under R.C. 2505.02(B)(4). After reviewing that subsection, the Court of Appeals concluded that the order was not reviewable and dismissed the appeal. 

State v. Wilson, 2013-Ohio-1529, issued on April 17, 2013 concerned whether the defendant had waived the assignment of error by not bringing the issue up after he was originally convicted. The issue concerned whether or not the trial court should have heard his motion to withdraw his guilty plea. By a 2-1 vote, the appellate court held that under Ninth District precedent the issue of withdrawal of a guilty plea should have been brought up following his original conviction. The dissent argued that since trial courts have discretion to hear post-conviction motions to withdraw guilty pleas, the trial court should have heard Mr. Wilson's motion. The dissent also argued that since the Ohio Supreme Court had issued two decisions after the trial court denied the motion that could have bearing on Mr. Wilson's motion, the appellate court should reverse and remand with instructions to consider the motion in light of the two Ohio Supreme Court decisions. 

Weisfeld v. PASCO, Inc., 2013-Ohio-1528 dealt with the issue of what should an appellate court do if a trial court incorrectly weight the evidence in deciding a motion for summary judgment? The majority found that the appellate court may consider examine the record to decide whether or not there was a material issue of fact independent of the trial court's findings of fact. If the appellate court determines that there was not a material issue of fact and that the non-moving party was entitled to judgment as a operation of law, it may go ahead and affirm the judgment. The dissent argued that once the appellate court determined that the trial court had inappropriately weighed the evidence, it should have reversed and remanded the case back to the trial court. 

State v. Mercer, 2013-Ohio-1527 issued April 17, 2013, concerned an appeal by a defendant who was convicted of rape and gross sexual imposition. The victim was a child who was 10 years old at the time of the incident and 11 years old at the time of the trial. Mr. Mercer raised four assignments of error on appeal They were that the trial court erred by failing to grant a mistrial based on the State's closing argument; that it erred by failing to comply with the requirements of R.C. 2945.481; that it erred by determining that the victim was competent to testify at trial; and that it erred by incorrectly imposing sentences on both offenses charged when they were allied offenses of similar import. 

The Court of Appeals held that all four assignments of error were not well taken. The assignment of error involving R.C. 2945.481 concerned whether that section, which allows a trial court to have a child victim testify in a separate room while the defendant watches via closed circuit television, was violated when the trial court used that procedure for a competency hearing. The section requires that certain procedures be followed when it is utilized. The defendant alleged that these procedures weren't followed. The Court of Appeals ruled that this section didn't apply because the child never actually testified at the competency hearing. The trial judge used the procedure to conduct a voir dire of the child witness. The Court of Appeals ruled that "by its plain language it was not implicated during the trial court’s voir dire of the victim during her competency hearing at which the child did not testify." Therefore the assignment or error was not well taken. 

State v. Hoyle, 2013-Ohio-1526 issued on April 17, 2013, concerned whether a trial court had to hear a motion from a defendant who was serving a sentence for murder. The motion concerned whether or not the sentencing entry complied with Crim. R. 32 and the Ohio Supreme Court decision of State v. Baker (2008), 119 Ohio St. 3d 197. The Court of Appeals found that the trial court did not err and affirmed the trial court's order denying the motion. 

State v. Arrunategui, 2013-Ohio-1525 issued on April 17, 2013, was a decision that reversed a trial court's order allowing a defendant to withdraw his guilty plea. The issue was whether the plea of guilty was knowingly entered when the defendant's counsel did not inform him that a conviction could result in deportation, but the trial court did so inform him, and whether the trial court should have held a hearing on the motion to withdraw. The State argued that the trial court advising the defendant of possible deportation overcame any issue with his counsel not advising him. The Court of Appeals stated that it wasn't making such a categorical decision, but rather, decided that the trial court should have held a hearing as opposed to just allowing the plea to be withdrawn by journal entry. 

Ninth Appellate District Opinions Released 4.10.2013

The Court of Appeals for the Ninth District released four opinions on Wednesday, April 10. All the opinions were from Summit County. My summaries of the opinions appear below. As always any mistake made in the summaries is solely my responsibility. 

State v. Caldwell, 2013-Ohio-1417, which concerned a criminal appeal from the Summit County Common Pleas Court. Mr. Caldwell assigned five grounds for error, including the admission of hearsay statements and ineffective assistance of counsel. The Court of Appeals first noted that only a few of the alleged hearsay statements were objected to at the time of the trial. The Court of Appeals noted that unless the admission of such statements amounted to plain error, failure to make objections at the time of the trial waived those objections. The Court of Appeals found that if one of the statements was inadmissible, it was harmless error and it found that the other statement was properly admitted. 

The Court of Appeals then considered the ineffective assistance of counsel argument. The Court noted that failure to object to hearsay evidence does not amount to ineffective assistance of counsel, citing to opinions from the Ohio Supreme Court. Mr. Caldwell also argued that his counsel was ineffective because she left a police officer on the jury. The Court of Appeals noted that when that juror was called, the defense had no more peremptory challenges and that there was no reason to successfully challenge for cause. The Court overruled that assignment of error. 

Mr. Caldwell also argued that the trial court should have held a hearing on his motion for a new trial. The Court of Appeals noted that the trial court incorrectly concluded that the issue of ineffectiveness of counsel could not be raised on a motion for a new trial, but also concluded that the error did not prejudice Mr. Caldwell. 

The other two assignments of error were that Mr. Caldwell's conviction was against the manifest weight of the evidence, which the Court rejected. He also argued that the trial court deprived him of confrontation by admitting hearsay statements from co-defendants. The Court of Appeals noted that there was not an objection made at the time of the trial and that Mr. Caldwell had not argued plain error in his initial argument, but only in his reply brief, which is not allowed. The conviction was affirmed. 

Melick v. Melick, 2013-Ohio-1418 was an appeal from the Summit County Domestic Relations Court. The Court of Appeals affirmed the decisions of that court. The opinion carries an interesting discussion of the law regarding the disqualification of a magistrate for alleged bias. The opinion also contains discussion on assignments of error concerning child support and the use of the child support calculation tables. 

Akron City Sch. Dist. Bd. of Edn. v. Summit Cty. Bd. of Revision, 2013-Ohio-1419 deals with issues raised by an appeal from a decision of the Summit County Board of Tax Appeals. The Appellant was a long term lessee of the property involved in the case. The Board ruled that the appellant did not have standing to challenge the assessment. The Court of Appeals affirmed that decision. The Court noted that there is both statutory law and case law that the only a landowner has standing to bring a challenge to the valuation of property for tax purposes. The other assignment of error was rendered moot by the appellant's lack of standing. 

Solomon v. Marc Glassman, Inc., 2013-Ohio-1420 was an appeal from a decision by the Summit County Common Pleas Court granting a motion for summary judgment. The summary judgment was granted to Marc's in a lawsuit brought by a customer who was injured while shopping. The injury occurred when a shopping cart lost a wheel and tipped over. The appellant alleged that she was an invitee and that Marc's had a duty to inspect its shopping carts to make sure that were working properly. Marc's agreed with the appellant that it had such a duty. The Court of Appeals held that there was a question of fact concerning whether that duty was violated and reversed and remanded the case. 

Ninth District Court of Appeals Opinions Released on 4.3.2013

The Court of Appeals for the Ninth Appellate District released two opinions on April 3, 2013. Both opinions were authored by Judge Jennifer Hensal, who joined the Court this past January. The opinions were for cases heard by the Summit County Common Pleas Court. The opinions were:

Wilcox v. Tabler, 2013-Ohio-1321, which reversed the trial court's granting of a motion for summary judgment. The plaintiff/appellant was a tenant living in a rented house. She slipped on water in the home's basement while she was doing laundry. She alleged that the defendant/appellee was negligent and that he violated duties created by the Ohio Revised Code and the Codified Ordinances of the City of Akron.

The Court of Appeals found that the trial court erred in requiring that the plaintiff/appellant had to produce evidence of a citation or expert witness testimony to establish there was a Code violation. The Court of Appeals essentially found that the circumstantial evidence in the record established an issue of fact regarding the Code violation.

State v. Sauto, 2013-Ohio-1320, which affirmed the defendant/appellant's conviction for unlawful sexual conduct with a minor. The appellant alleged that the trial court erred in allowing the State to amend the indictment alleging that the conduct took part during a 19 day period and not on a single day. The Court of Appeals noted that the amendment did not change the nature or identity of the offense and therefore held that there was no error.

The appellant also alleged that the trial court erred in not giving her a continuance after allowing the State to amend the indictment and in not granting a mistrial. The Court of Appeals rejected both of these assignments of error.  

Ninth District Court of Appeals Opinions for 3.27.2013

The Court of Appeals for the Ninth Appellate District released eight opinions on March 27, 2013. The opinions were as  follows:

State v. Austin, 2013-Ohio-1159, which was a criminal case out of Summit County. Austin listed three assignments of error. The Court affirmed on the first two assignments of error, but reversed and remanded on the third.

The Court held that the trial court did not consider whether the two offenses that Austin were sentenced on were allied offenses of similar import under a "merger" theory.

In its opinion by Judge Whitmore, the Court wrote the following:

"The record does not support the conclusion that the trial court considered and applied Johnson when it sentenced Austin. Neither the court, nor the parties ever discussed Johnson or the issue of merger. Were this Court to apply Johnson to Austin’s breaking and entering and vandalism convictions, we would be doing so in the first instance. This Court has consistently declined to do so. See, e.g., State v. Chisholm, 9th Dist. No. 26007, 2012-Ohio-3932, ¶ 22. The State here has acknowledged that the trial court did not consider Johnson and has requested that this Court remand the matter. We agree that a remand is appropriate, given our prior decisions. Therefore, this matter must be remanded to the trial court for it to apply Johnson and determine whether Austin’s offenses should merge. “Moreover, in the event that the offenses are allied, ‘the State also must have the opportunity to elect the offense[] upon which it wishes to proceed to sentencing.’” Asefi at ¶ 8, quoting State v. Ziemba, 9th Dist. No. 25886, 2012-Ohio-1717, ¶ 23. Austin’s third assignment of error is sustained solely on the basis that this matter must be remanded, consistent with the foregoing discussion."

Harper v. Chaney, 2013-Ohio-1160, which was a civil case out of Summit County. The assignment of error was:

The Court held that there was a genuine issue of material fact as to whether the danger confronted by the plaintiff was "open and obvious" and therefore held that summary judgment was improper.

The Court explained its ruling this way:

"Viewing the evidence in a light most favorable to Ms. Harper, the non-moving party, we conclude that the totality of the circumstances give rise to a question of fact regarding whether Ms. Harper would have been able to observe the step had she been looking down at the basement floor on the day of her accident. See Zambo at ¶ 9. Specifically, there was evidence of

some daylight streaming in from a basement window, which may or may not have been partially obstructed by a curtain. Further, there was evidence of sufficient lighting to descend the basement stairs, but insufficient lighting in the area beyond the basement stairs where this seemingly random step was located. While the trier of fact may ultimately find that, under these

lighting conditions, Ms. Harper was reasonably expected to discover the step and avoid the hazard, we believe that such a factual determination must be resolved in Ms. Harper’s favor at this stage of the proceedings. Accordingly, this Court concludes that a genuine issue of material fact exists as to whether, under the existing lighting conditions, the step posed an open and

obvious danger. See Marock v. Barberton Liedertafel, 9th Dist. No. 23111, 2006-Ohio-5423, ¶ 19."

State ex rel. Longville v. Akron, 2013-Ohio-1161, was a civil case out of Summit County which listed three assignments of error by the appellant and one assignment of error by the appellee.  Only one of the assignments was ruled upon and the Court reversed on that assignment. The Court of Appeals wrote the following concerning the assignment of error that it reversed on:

"In its first assignment of error, the City of Akron argues that the trial court erred in granting Ms. Longville’s motion for summary judgment because it improperly converted Ms. Longville’s request for declaratory judgment and injunction into a mandamus action, where Ms. Longville did not properly plead the elements of a mandamus action in her complaint. For the

reasons set forth below, we agree that the trial court erred."

Because it reversed on that assignment of error, it held that it did not have to reach the other assignments of error at this time.

Statev. Papczun, 2013-Ohio-1162 was a criminal case out of Summit County. The Court dismissed the appeal for a lack of a final appealable order.  In the following paragraph, the Court explained its ruling:

"In State v. Keith, 9th Dist. No. 08CA009362, 2009-Ohio-76, this Court concluded that the calculation of jail-time credit must be included in the sentencing order and that, “in order to challenge the trial court’s calculation of jail time credit, an appellant must appeal from the trial court’s entry imposing sentencing.” Id. at ¶ 8. We reasoned that an appeal from an order that denies a motion to revisit the issue of jail time credit is, essentially, an appeal from an order denying reconsideration of the sentencing order. Id. Because “[a] motion for reconsideration of a final judgment is a nullity * * * and ‘a judgment entered on a motion for reconsideration is a

nullity,’” this Court concluded that an order that denies a motion for jail time credit is not final and appealable. Id., quoting State v. Harbert, 9th Dist. No. 20955, 2002-Ohio-6114, ¶ 24-25."

State v. Porter, 2013-Ohio-1163 was another decision where the Court of Appeals concluded that the appeal was defective and therefore it did not have to address the merits of the appeal. Porter, who was convicted in the Summit County Common Pleas Court, was appealing from the dismissal of his petition for post-conviction relief. In the opinion the Court wrote the following:

"A trial court may not entertain an untimely petition for post-conviction relief

unless the petitioner shows that: (1) either he or she “was unavoidably prevented from discovery of the facts upon which the petitioner must rely to present the claim for relief, or, [after the filing deadline], the United States Supreme Court recognized a new federal or state right that applies

retroactively to persons in the petitioner’s situation, and that the petition asserts a claim based on that right”; and (2) the petitioner shows that but for the constitutional error at trial, no reasonable fact-finder would have found petitioner guilty. R.C. 2953.23(A)(1)(a)-(b). Porter has made no

argument that any of these conditions apply."

Since Porter did not file a timely petition for relief, the trial court was not required to entertain the petition and the Court of Appeals affirmed the trial court's dismissal.

Thomas v. Bauschlinger, 2013-Ohio-1164, was an appeal from a decision of the Summit County Common Pleas Court dealing with several issues. The Court affirmed in part and reversed and remanded in part. The appellants, who were acting pro se, sued several officials of the City of Barberton. The lawsuit involved actions taken by the City administration and the City Police Department. The Court of Appeals affirmed the dismissal of the lawsuit with respect to members of the Police Department, the Mayor, and the City Prosecutor. The Court, however, reversed regarding the allegations made against the City's Building Inspector.

The Court explained its ruling in this paragraph:

"Here, again taking as true the facts as alleged in the complaint, the Building

Department condemned the property without an interior inspection or any further justification. Without notice to the Thomases and without providing them an opportunity to collect their personal belongings, the City demolished the property, destroying their belongings. In their prayer for relief, the Thomases maintained that they lost the use of their real and personal property due to the “willful[ ]and wanton acts” of the Appellees. Taking as true the allegations of the complaint, we cannot say that there exists no set of facts by which the Thomases could establish that [the Building inspector] acted manifestly outside the scope of his employment or with “malicious purpose, in bad faith, or in a wanton or reckless manner.” See LaSalle Bank at ¶ 19; R.C. 2744.03(A)(6)(b). Therefore, the claims against him should not have been dismissed under Civ.R. 12(b)(6). Accordingly, to the extent that the Thomases argue that the trial court erred in dismissing their claims against [the Building Inspector] on the basis of his purported political subdivision employee immunity, their assignments of error are sustained."

Young v. Young, 2013-Ohio-1165, was an appeal from a decision of the Summit County Court of Domestic Relations regarding allocation of parenting time. The Court of Appeals dismissed the appeal because the issues raised in the appeal became moot when the child who was the subject of the parenting time order turned 18. The Court explained its ruling this way:

"Once K.Y. turned 18, she ceased to be a child/minor. The domestic relations court lacks authority to order an adult to engage in companionship time with her parent. Even if the court erred by dismissing the proceedings, the remedy Father seeks is no longer available due to K.Y.’s having turned 18. Therefore, Father’s appeal is moot. See In re Wyatt, 3d Dist. No. 5-07-

45, 2008-Ohio-2115, ¶ 9; Dahmen v. Dahmen, 11th Dist. No. 2007-T-0037, 2008-Ohio-2129, ¶ 7-9; Matter of Miller, 5th Dist. No. 97-COA-01223, 1998 WL 429830, *1-2 (July 9, 1998)."

Vanderbilt v. Vanderbilt, 2013-Ohio-1222 is an appeal from the Medina County Court of Domestic Relations. Both the husband and the wife appealed from the trial court's order. The wife's appeal resulted in the Court of Appeals affirming the trial court, but the husband's appeal resulted in the Court reversing the trial court's order regarding the issue of spousal support.

The husband argued that the trial court erred by not conducting an analysis of whether a pre-nuptial agreement that concerned spousal support had

terms that were unconscionable as of the time of the divorce.

The Court set forth its reasoning in this quote from the opinion:

"The question for the trial court is not whether the spousal support terms of a prenuptial agreement are fair, but whether they are unconscionable when viewed at the time of the divorce. The burden of this demonstration is on the party alleging the unconscionability. Gross at 109-110."