Ninth District Opinions Released July 8, 2013

On July 8, 2013, the Court of Appeals for the Ninth Appellate District released two opinions. One concerned a criminal case and the other concerned a civil case. My summaries of the decisions appear below: 

Matheny v. Matheny, 2013-Ohio-2946 was an appeal from a domestic relations case out of the Wayne County Common Pleas Court. At issue was the interpretation of a separation agreement entered into by the Mathenys who were acting pro se. There were two versions of the separation agreement. On the first version the parties agreed to split one half of the proceeds from the sale of the marital residence. On the second version they agreed to split one half of the profit from the sale of the residence. (The reason that there were two versions was that when they filed the first agreement along with their dissolution petition they had not filled out the part of the pre-printed form dealing with child support.)

When the house was sold, it was sold for less than the price that the Mathenys paid when they bought the home. The magistrate reasoned that profit was the moneys received over the cost of an item and therefore there was no "profit" on the sale of the home. The Court of Appeals reversed and remanded the case for further proceedings.  The appellate court found that the term "profit" and its use was ambiguous. In part of the separation agreement they referred to the home having a mortgage and in another part they referred to the cost of construction. While the appellate court found the magistrate's reasoning reasonable it also found that the two references made the term "profit" ambiguous. It then remanded for the trial court to take extrinsic evidence. 

State v. Brown, 2013-Ohio-2945 was a criminal case also from Wayne County. Mr. Brown appealed his conviction for aggravated murder. He listed several assignments of error. Mr. Brown argued that his convictions were against the manifest weight of the evidence and that the State had not sustained its burden of proof. The appellate court overruled those assignments of error. He also argued that the trial court had committed reversible error during the reading of the jury instructions and during a curative instruction in which the trial court mentioned the possibility of an appeal. This assignment was also overruled. The Court of Appeals did, however, find that the trial court improperly imposed post-release control on the charge of aggravated murder. That charge was an unclassified felony and therefore not subject to post-release control. The appellate court remanded for the trial court to hold another sentencing hearing without imposing post-release control on that charge. 

Ninth District Opinions for Wayne County Released on June 28, 2013

The Court of Appeals for the Ninth Appellate District released opinions for three Wayne County appeals on June 28, 2013. My summaries of the decisions appear below. 

Stephens v. Stephens, 2013-Ohio-2797 was an appeal from a divorce decree issued by the Wayne County Court of Appeals. The Court of Appeals reversed the decision of the Wayne County Common Pleas Court and remanded for further proceedings. The issue was whether Mrs. Stephens was denied a fair trial because the proceedings were held while she was incarcerated and the Common Pleas Court did not provide her with a court-appointed attorney to represent her at the hearing nor was there any provision made for her to appear at the hearing. 

The Court of Appeals started its analysis with the observation that "generally prisoners have no constitutional right to be personally present at 
any stage of * * * civil proceedings", quoting from Carrion v. Carrion (9th. Dist), 2007-Ohio-6142. The Court noted, however, that under Carrion a trial court is required to engage in an analysis of nine factors as to whether this general rule should or should not be observed. Since there was no indication that the trial court engaged in such analysis, the decision was reversed and remanded for further proceedings. 

State v. Maynard, 2013-Ohio-2796 was an appeal from a criminal case heard in the Wayne County Common Pleas Court. The Court of Appeals affirmed. Mr. Maynard appealed on three issues. The first was that his conviction was against the manifest weight of the evidence. The second was that he was denied due process because the State didn't put him on notice it was seeking a conviction on the lesser included offense of attempt. The third was that the trial court applied the attempt statute in such a way as to allow his conviction on a lesser degree of culpability than constitutionally required. 

In rejecting all three assignments of error the appellate court noted that there are three types of lesser included offenses. They are attempts, lesser degrees of the indicted offense, and lesser included offenses that are committed when committing or attempting to convict the indicted offense. An example of lesser degree of an indicted offense would be where the State charged a person with a felony theft, but couldn't prove the value was $1,000.00. An example of the third type would be where the State charged a person with assault but could only prove disorderly conduct. 

Honabarger v. Wayne Sav. Community Bank, 2013-Ohio-2793 was an appeal from the granting of a motion for summary judgment on the issue of liability in a slip and fall case. The Court of Appeals reversed on the sole assignment of error that there were material issues of fact and therefore summary judgement was inappropriate. In reversing the trial court the appellate court noted that while there was a reference to photographs in the trial court's opinion, the only photographs that were in the record were photographs attached to the defendant's motion. Photographs shown to the plaintiff at his deposition were not included with the deposition when it was filed. 

Ninth District Opinions for May 20, 2013

The Court of Appeals for the Ninth Appellate District released the following opinions on May 20, 2013:

State v. Taylor, 2013-Ohio-2035 reversed a decision from the Oberlin Municipal Court that found lack of physical control to be a lesser included of driving while under the influence. The appellate court found that a person can commit the offense of driving while under the influence in violation of R.C. 4511.19 without being in a motor vehicle, but could not commit the offense of lack of physical control in violation of R.C. 4511.194 unless they were in a motor vehicle. Therefore an R.C. 4511.194 offense is not a lesser included of a R.C. 4511.19 offense. 

Kick v. Smithville W. Care Ctr., 2013-Ohio-2034 reversed a decision from the Wayne County Court of Common Pleas that had enforced an arbitration agreement between a nursing home and one of its patients. The trial court had also stayed proceedings. The reason for the reversal and remand was because the trial court had not considered issues raised by the estate of the patient. These issues included whether an arbitration agreement between the nursing home and the patient terminated on the parient's death and whether the arbitration agreement bound the patient's personal representative in a wrongful death case. The trial court was instructed to consider the issues raised by the appellant. 

Hadcock Properties, Inc. v. Mesar, 2013-Ohio-2033 reversed and remanded a decision from the Medina County Common Pleas Court that had held that attorney fees shouldn't be awarded pursuant to a lease. The lease had been drafted by Hadcock Properties. The lease was for five years, but wasn't acknowledged by the lessee. 

The trial court found that the equitable doctrine of partial performance took the lease out of the Statute of Conveyances, but that since the doctrine of part performance is a equitable doctrine and since the landlord had drafted the lease, it wasn't equitable to enforce the clause regarding payment of attorney fees. 

The Court of Appeals disagreed. It held that once the doctrine of part performance was applied, the whole lease was valid and the trial court should have enforced the attorney fees provision. The case was remanded with instructions to award attorney fees as claimed by the landlord. 

Ninth Appellate District Opinions from Wayne County Released on May 13, 2013

The Court of Appeals for the Ninth Appellate District released two opinions on appeals out of Wayne County. 

Weygandt v. Ward, 2013-Ohio-1937 was a case involving an appeal from a decision of the Wayne County Common Pleas Court. The facts were as follows:

Fred Ward died in 1988, leaving his wife a life estate in his property. His will provided that, upon his wife’s death, his real property would pass to his son Virgil, who also received a life estate. The will provided that Virgil could “sell and dispose of any or all of said real property for such prices and upon such terms as he in his own discretion may deem advisable * * *.” If Virgil sold any of the land, however, he had to divide the proceeds into six parts. Virgil was allowed to keep two of the parts but he had to give the others to his four sisters or their descendants.

One of the properties that Virgil received after Mr. Ward’s wife died was a 240-acre farm that he and his father had farmed together. Virgil continued farming the land for several years until it became too difficult for him. He began renting the land to his niece and her husband, Diane and Roger Baker, who lived nearby.

Desiring to keep the 240-acres together as a family farm, Virgil later decided that he wanted the Bakers to have the land. After consulting with a lawyer, he learned that he could not give the land to the Bakers, but could sell it to them. According to the Bakers, Virgil proposed that he sell the land to them for $1000 an acre, contingent on it remaining a farm and their letting him live on the land until his death. The Bakers agreed to those terms. They executed a sales agreement and mortgage, under which the Bakers would pay $240,000 for the property and Virgil would receive the first $50,000 in mortgage payments to reimburse him for improvements he had made to the farm with the rest to be divided between him and his sisters as provided in Fred Ward’s will.

After learning about the sale, some of Virgil’s sisters and their descendants sued Virgil, the Bakers, and anyone else who might have an interest in the land, seeking a declaration that the sale was void. The trial court dismissed the action because it determined that Fred Ward’s will gave Virgil power to sell the land under whatever terms he desired. This Court reversed, however, because we determined that, under the Ohio Supreme Court’s holding in Johnson v. Johnson, 51 Ohio St. 446 (1894), Virgil owed a fiduciary duty to his sisters and their descendants “as their implied, quasi trustee.” Weygandt v. Ward, 9th Dist. No. 09CA0050, 3 2010-Ohio-2015, ¶ 12. We remanded the case to the trial court for it to determine whether Virgil acted within his authority when he conveyed the property to the Bakers. Id. at ¶ 13, 15.

At trial, Virgil’s sisters presented evidence that, at the time Virgil sold the property for $240,000, its fair market value was $1,170,000. They argued that, even though Virgil had discretion to sell the land at “such prices and upon such terms as he * * * may deem advisable,” he had breached his duty of good faith to them. The trial court agreed, concluding that Virgil “did not have the authority to convey the real property for insufficient consideration, reserve a life estate for himself, grant an agricultural easement on the property, and take a note and mortgage on the property whereby he received the first $50,000 in payments before any monies were to be paid to Plaintiffs and others.” It, therefore, declared all of the documents that were involved in the conveyance null and void. 

Virgil and the Bakers filed the appeal alleging seven assignments of error. The first assignment of error concerned the trial court's decision that Virgil didn't have the power to sell the land at such a price and on such terms as he decided. The Court of Appeals overruled this assignment of error. The Court of Appeals overruled this assignment of error because under the law of the case resulting from the prior appeal Virgil didn't have the right to question the Court of Appeals determination that he didn't have unbridled discretion to sell the property. 

The second assignment of error concerned whether the trial court erred in finding that the consideration that the Bakers paid Virgil was insufficient. The Court of Appeals affirmed the trial court's decision on the theory that when he was given a life estate, Virgil became a quasi-trustee to manage the property as a fiduciary to his sisters. The Court of Appeals pointed out that although its language concerning the existence of such a duty was dicta in the first appeal decision, the trial court acted correctly in following that language. 

The third assignment of error concerned whether the trial court had failed to ascertain the intent of the testator in interpreting the will. The Court of Appeals held that the law of the case meant that the trial court had to consider Virgil as a quasi-trustee, thus making testator's intent irrelevant. 

The fourth assignment of error was that the trial court should have awarded damages instead of invalidating the sale of the Ward farm. The Court of Appeals sustained this assignment of error because under Ohio law while a trial court can void a transfer by a fiduciary acting in violation of his or her fiduciary duties, a purchaser who makes a bona-fide purchase without knowledge of the violation of the fiduciary duties may retain the property. The Court of Appeals remanded for further evidence regarding those issues. 

The fifth assignment of error dealt with whether the trial court erred in admitting parol evidence. The Court of Appeals found that it had not. 

The sixth assignment of error concerned whether the trial court erred in admitting evidence of the value of a fee simple interest in the Ward farm. The Court of Appeals held that it did not. 

The seventh assignment of error concerned whether the trial court erred in issuing a protective order to bar depositions of out of state witnesses in Ohio. The appellate court held that it did not. 

The other decision regarding an appeal from a Wayne County case was Daugherty v. Daugherty, 2013-Ohio-1934. This case also involved an appeal from a domestic relations case. In this case, the Court of Appeals affirmed in part and reversed in part. 

In this case the wife filed an appeal which listed two assignments of error.  In discussing the first assignment of error, the appellate court wrote the following: "The crux of Wife’s argument is that the parties had not reached an agreement regarding the allocation of certain real property in which Husband had an interest. She argues that, accordingly, the trial court erred by enforcing the parties’ alleged consent agreement to temporary orders regarding such property while the divorce action was pending." 


The Court of Appeals went on to note that at trial the wife stated that the only issue in dispute was the amount of spousal support. The Court found that making this stipulation acted as a waiver of the issue raised in the first assignment of error. Consequently that assignment of error was overruled. 

In the second assignment of error the appellate court dealt with the issue of whether the amount of spousal support awarded by the trial court was unreasonable. The Court of Appeals found that it was and reversed the spousal support award and remanded the case back to the trial court for proceedings consistent with the opinion. 

Ninth District Opinions Released April 29, 2013

Last week the Court of Appeals for the Ninth Appellate District released 14 opinions. Three were released on April 29, 2013 and 11 were released on May 1, 2013. The opinions released on April 29, 2013 were:

In reC.R., 2013-Ohio-1724 was an appeal by the State from a decision of the Medina County Juvenile Court granting a motion to suppress. The Court of Appeals affirmed the trial court's decision. In the opinion there is an interesting discussion of whether the Ohio Rules of Evidence apply to hearings on motions to suppress evidence.

The Court of Appeals opinion noted that under Evid. R. 101 (C) (1) and Evid. R. 104 (A) a trial court is not bound by the Rules of Evidence when making preliminary decisions regarding the admissibility of evidence except with respect to privileges. The State argued in its appeal that since the Juvenile Court was not bound by the Rules of Evidence it erred in not admitting hearsay evidence in the form of one officer testifying as to what another office had told him.

The Court of Appeals noted that while the Rules of Evidence don't apply in a suppression hearing, hearsay evidence is still regarded by courts as unreliable. The Juvenile Court held that the State hadn't met its burden. Thus, the Court of Appeals reasoned that if the Juvenile Court would have allowed the hearsay evidence, it wouldn't have changed the Juvenile Court's ruling that the State hadn't met its burden.

The Court of Appeals also overruled other assignments of error raised by the State. The opinion was a 2 to 1 opinion. Judge Hensal wrote the Court's opinion and Judge Whitmore filed a opinion that concurred in part and dissented in part.

McMillanv. Global Freight Mgt., Inc., 2013-Ohio-1725 was an appeal by the Plaintiff from a decision of the Lorain County Common Pleas Court. The decision appealed from was a decision granting a motion for summary judgment in a wrongful termination lawsuit. The Plaintiff contended that his termination from employment by the Defendant was due to his filing a claim for Worker's Compensation. The issue raised on appeal was whether there is a common law claim for wrongful discharge for filing a worker's compensation claim in addition to bringing a cause of action under R.C. 4123.90.

The Court of Appeals held in a decision that was written by Judge Moore that a common law cause of action for the tort of violating public policy does not exist in Ohio. In reaching its conclusion the Court of Appeals relied on a decision from the Ohio Supreme Court and distinguished a decision that was cited by the Plaintiff. The decision of the Lorain County Common Pleas Court was affirmed.

Schmuckerv. Kurzenberger, 2013-Ohio-1726 was an appeal by both parties of a decision by the Wayne County Common Pleas Court granting a motion for summary judgment filed by the Wayne Mutual Insurance Company. The Plaintiffs appealed the decision granting the motion on one ground and the insurance company appealed the part of the decision that denied the motion on another ground.

The issue in the appeal was whether there was coverage for an automobile accident that ended up killing a young woman who was the daughter of a woman who, along with her husband, had a policy issued by Wayne Mutual. When the accident happened the young woman was a passenger in a car driven by her father.  Her father had drove the car left of the center line. His daughter grabbed the wheel and pulled the car back. When she did that her father overcorrected and lost control of the vehicle.

The trial court found, and the Court of Appeals agreed, that when the accident took place the daughter was not using the car as she was permitted. This is known as a "unpermitted use exclusion." The Court of Appeals also found that the trial court was correct in holding that the "regular use exclusion" also excluded coverage.

The Insurance Company appealed the trial court's decision not to exclude coverage under an "intentional act exclusion." The Court of Appeals ruled that its ruling on the two assignments of error raised by the Plaintiffs rendered the issue of "intentional act exclusion" moot and declined to address it.

The decision was a 2-1 decision. Judge Carr authored the opinion and Judge Whitmore concurred while Judge Moore wrote a dissent.