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 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 Appellate Opinions from Medina & Lorain Counties Released on 4/17-4/24/2013

The Court of Appeals for the Ninth Appellate District released 11 opinions from April 17 through April 24, 2013. One decision was for a Medina County appeal; three were for Lorain County appeals; and seven were for Summit County appeals. 

The Medina County decision was released on April 17, 2013. The case citation is Lexington Ridge Homeowners' Assn. v. Schlueter, 2013-Ohio-1601.  The  appeal involved a sale of a condominium unit by a home-owners' association and a mortgage that was held by Chase Home Finance LLC and Chase Bank USA, N.A. (Chase). The Association brought the foreclosure action to collect past due fees. The Association gave notice to Chase of the foreclosure since the judicial title report listed Chase as having a mortgage on the property. Chase did not make an appearance in the action. The Common Pleas Court signed a default judgment entry declaring that Chase had no interest in the property. Prior to the judgment entry being filed the case had been pending for almost two years. 

The decree of foreclosure was issued on July 7, 2010. On July 12, 2010, Chase filed a motion for leave to file an answer instanter. The Common Pleas Court denied that motion. Chase then filed an appeal to the Ninth Appellate District. Chase presented two assignments of error. 

The first assignment of error was that the decree of foreclosure exceeded the relief that was sought in the complaint and therefore failed to comply with Civ. R. 54(C). The second assignment of error was that the decree of foreclosure and judgment entry was against the manifest weight of the evidence. The Court of Appeals rejected both assignments of error and affirmed the trial court's judgment. 

The three Lorain County decisions were all issued on April 22, 2013. The decisions are as follows:

Spradlin v. Elyria, 2013-Ohio-1602 reversed a decision of the Lorain County Court of Common Pleas grating a Civ. R. 12 (B) (6) motion to dismiss for failure to state a claim. The case involved the death of a young boy who fell from steps overlooking a waterfall in a park in Elyria. Elyria filed the motion alleging that it was immune from liability because it was a governmental entity performing a governmental function. 

The Court of Appeals noted that in deciding a Civ. R. 12(B)(6) motion, a trial court has to assume that all of the factual allegations in the complaint are true. The Court of Appeals stated that the trial court apparently considered matters outside of the pleadings. Since this is not permitted, unless the trial court converts the motion to dismiss into a motion for summary judgment, the appellate court reversed and remanded the case for further proceedings. 

In re Adoption of A.H., 2013-Ohio-1600 affirmed a decision of the Lorain County Probate Court allowing the adoption of a child by the child's paternal grandparents. The paternal grandparents had raised the child since the child was less than a year old. R.C. 3107.07(A) provides that a parent’s consent to adoption is not required if it is alleged in the adoption petition and the court finds by clear and convincing evidence that: "the parent has failed without justifiable cause to provide more than de minimis contact with the minor or to provide for the maintenance and support of the minor as required by law or judicial decree for a period of at least one year immediately preceding either the filing of the adoption petition or the placement of the minor 
in the home of the petitioner."

Because R.C. 3107.07(A) is written in the disjunctive, either a failure to 
communicate or a failure to provide support for the one-year time period is sufficient to obviate the need for a parent’s consent. In this particular case the Probate Court made the finding that the mother, who was objecting to the adoption, had failed to provide more than de minimis contact. The mother argued on appeal that the appellate court should apply an abuse of discretion standard of review. The appellate court rejected that argument and held that in order to reverse the Probate Court's decision, the Court of Appeals would have to find that the Probate Court decision was against the manifest weight of the evidence. The Court of Appeals held that it could not make such a finding and affirmed the decision. 

BankUnited v. Klug, 2013-Ohio-1599 was an appeal by a bank from a decree of foreclosure that held that a woman's dower interest was one-third of the value of the property and that it was superior to the bank's mortgage. The Court of Appeals reversed on the first assignment of error and concluded that its decision on the first assignment of error meant that the second assignment of error was not ripe for adjudication. 

In its assignment of error the bank argued that application of the principles of equitable mortgage and equitable subrogation required the trial court to find that the bank's lien was superior to any dower interest. The Court of Appeals, however, found that the bank failed to show that there was an an absence of a factual issue, and  therefore the trial court was right to deny its motion for summary judgment. 

The Court of Appeals, however, then reviewed the trial court's granting of the woman's motion for summary judgment, It held that granting that motion was improper for the reason that she too had not shown an absent of a factual issue. Therefore the case was remanded back to the trial court for further proceedings. 

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. 

Eighth District Case on Emotional Distress & Summary Judgments

The Court of Appeals for the Eighth Appellate District released an opinion on April 4, 2013, involving an appeal from the granting of a motion for summary judgment. The case, Lively v. Donald Dunning, D.D.S., Inc., 2013-Ohio-1350, involved an ex-employee, and former step-daughter, suing her former employer. The employer had reported to the police that she had embezzled money from their accounts. The report was made after she resigned her position. The police report led to an indictment, but the judge in the criminal case, found her not guilty. 

She then sued for malicious prosecution and for intentional infliction of emotional distress. The defendant responded by arguing that the grand jury indictment created a presumption that there was probable cause for the indictment and therefore no liability for malicious prosecution. 

The Court of Appeals reversed. The Court noted that the presumption of probable cause from the issuing of the indictment was a rebuttable presumption. In this particular case, the appellate court noted that record showed the existence of facts from which a circumstantial case could be made for the rebutting of the presumption. 

On the intentional infliction of emotional distress claim the Court noted that  reporting a crime to a police agency and assisting in the investigation is not the type of outrageous conduct that leads to intentional infliction of emotional distress. The Court also noted, however, that the circumstances of this particular case were such that the Court could not say as a matter of law that the conduct of the employer was not outrageous. Therefore the summary judgment on that claim was also reversed. 

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 Appellate District Decisions Released on 3.29.2013

The Ninth District Court of Appeals released 12 opinions on Friday, March 29, 2013. There were two decisions from Medina County appeals, five decisions from Lorain County appeals, and five decisions from Summit County appeals.

The decisions released from Medina County appeals were:

State v. Evans, 2013-Ohio-1216, which involved a petition for post-conviction relief. Mr. Evans appealed from a denial of his petition for post-conviction relief by the trial court. In his petition he claimed that his trial counsel was ineffective in failing to call a witness, in failing to use information to impeach the State's witnesses, and in failing to inform him of plea negotiations. At a hearing scheduled on his petition, Mr. Evans failed to produce witnesses that he claimed would support his allegations. The trial court overruled his petition for post-conviction relief. The Court of Appeals applied an abuse of discretion standard to the appeal and affirmed the trial court's ruling.

State v. Schmolz, 2013-Ohio-1220, which involved the issue of whether the trial court erred by allowing the State to amend the indictment during trial. The indictment charged Ms. Schmolz with receiving stolen property. The property was described as a "license plate". During trial the State established that the property was a "temporary license placard". Both kinds of property are covered by R.C. 2913.71(C), which makes theft offenses involving such property felonies of the fifth degree. The Court of Appeals found that the amendment did not change the identity of the offense, which was receiving stolen property, nor the penalty, since theft offenses involving both "license plates" and "temporary license placards" are fifth degree felonies. Therefore the Court of Appeals affirmed Ms. Schmolz's conviction.

The decisions released from Lorain County appeals were:

Billi v. Moyse-Morgan Ents. Inc., 2013-Ohio-1214, which involved an appeal from the granting of a motion for summary judgment. The Plaintiff, who was the appellant, alleged two claims of negligence against the Defendants, who were owners and employees of a bar. The first claim was for negligence and the second was for a violation of Ohio's Dram Shop Act. The Court of Appeals affirmed the trial court's granting of the motion for summary judgment on the negligence claim, but reversed the trial court's granting of the summary judgment motion on the Dram Shop Act claim.

Gargasz v. Lorain Cty., 2013-Ohio-1218, concerned an appeal from a declaratory judgment. The Court of Appeals reversed the trial court finding that the trial court's judgment entry did not declare the "rights and responsibilities of the parties". Since the trial court's entry did not make such declarations, the judgment was not a final and appealable order. The trial court's judgment entry was an entry that stated that it was granting the Defendants' motion for summary judgment and denying the Plaintiffs' motion for summary judgment. The Court of Appeals held that such an entry did not comply with R.C. R.C. 2721.02(A) which expressly provides that a “declaration has the effect of a final judgment or decree[]” and that a declaration is “either affirmative or negative in form[.]”

Strickler v. First Ohio Banc & Lending, Inc.,2013-Ohio-1221, which was an interlocutory appeal from an order by the Lorain County Common Pleas Court granting class certification. The Court of Appeals affirmed the class certification made by the Lorain County Common Pleas Court. The class action is based on allegations that First Ohio had failed to provide buyers with disclosure statements that complied with R.C. 1322.062. The class action is directed at First Banc and at the sureties who had issued mortgage broker bonds to First Ohio and its employees. The decision contains a discussion on what the role of a trial court is in determining whether to grant class certification.

Young v. Conry, 2013-Ohio-1223 which was an appeal from a decision of the Lorain County Probate Court granting summary judgment to the defendants in a will contest case. The appellants argued that the Probate Court abused its discretion by enforcing a discovery cut-off date and by granting the summary judgment motion. The Court of Appeals affirmed the actions of the Probate Court regarding both allegations of error.

State v. Zepeda-Ramires, 2013-Ohio-1224 which was an appeal from an order of the Lorain County Common Pleas Court requiring payment of a forfeited bond issued by a bonding company in a criminal case. The Court of Appeals noted that the appellants were objecting to what the appellants called the trial court's failure to comply with the statutory requirements for bond forfeiture. The Court of Appeals also noted that the appellants failed to attend hearings that were scheduled on the State's motion to revoke bond and declare the bond forfeited. Since the appellants could have raised these issues at those hearings, the Court of Appeals considered those issues were forfeited on appeal. If an appellate issue is forfeited, then the Court of Appeals can only review under a "plain error" standard, but, in this case, the appellants did not allege "plain error." Therefore the trial court was affirmed.

The decisions released from Summit County were:

Akron v. State Emp. Relations Bd., 2013-Ohio-1213, which was an appeal from a decision of the Summit County Court of Common Pleas that the City of Akron engaged in an unfair labor practice in its dealings with the Fraternal Order of Police during labor negotiations. The Order represents Akron's police officers. Originally the allegation was heard by the State Employment Relation Board, S.E.R.B., which found that the City had engaged in an unfair labor practice. The Common Pleas Court affirmed the order of the S.E.R.B. on an administrative appeal. The Court of Appeals affirmed the Common Pleas Court.

State v. Castagnola, 2013-Ohio-1215, was an appeal from Mr. Castagnola's convictions for multiple offenses in two separate cases. The offenses were described as "criminal damaging, vandalism, criminal trespass, possession of criminal tools, two counts of retaliation, and multiple forfeiture specifications" in one case and "pandering sexually oriented matter involving a minor" in the other case. He was convicted by a jury in the first case and by the trial court in the second case. On appeal he alleged error by the trial court in not suppressing a search and seizure of his computer, by convicting him of the pandering charge on insufficient evidence, by not merging offense, and by imposing consecutive sentences without making required findings. The Court of Appeals affirmed the trial court on the first two assignments of error, reversed and remanded on the merger issue, and, because his sentence may change following the merger, did not address the assignment of error involving the consecutive sentences.

Flaughers v. Thomas, 2013-Ohio-1217 reversed a decision of the Summit County Probate Court that entered a judgment in favor of the defendants/appellees following a jury trial. The issue on appeal involved whether the trial court erred by not granting a motion for summary judgment filed by the plaintiff-appellant. The appellant argued that the United States Bankruptcy Court had determined that the appellees had embezzled assets from the decedent's estate. The appellant had been appointed the administrator of the estate. The Court of Appeals found that the issue of whether the appellees had embezzled or concealed the estate's assets had been determined by the Bankruptcy Court and that determination was res judicata on the Probate Court. The Court of Appeals held that while the issue of liability had been determined, the issue of damages was not reached by the Bankruptcy Court. It remanded the case to the Probate Court for a determination on that issue.

State v. Lamp, 2013-Ohio-1219 reversed a decision of the Summit County Common Pleas Court which had granted the defendant's motion to dismiss the case on grounds of double jeopardy. Mr. Lamp had been charged with breaking and entering in the Common Pleas Court, a fifth degree felony, and with theft in a municipal court, a first degree misdemeanor. After pleading guilty to the theft charge, he filed the motion for dismissal on double jeopardy grounds. The trial court granted the motion, but the Court of Appeals reversed. The appellate court found that when determining whether there is a double jeopardy violation for successive prosecutions, the trial court must examine the elements of each offense. In this case the trial court did not conduct an examination of the elements of each offense, but focused on whether there was a merger of the two offenses. The Court of Appeals reversed and remanded so that the trial court could conduct an examination of the elements to determine if either statute required proof of a fact that the other statute did not require.

Rivers v. Cashland, 2013-Ohio-1225 was an appeal from a decision of the Summit County Court of Common Pleas granting summary judgment on several claims raised by the plaintiff-appellant. The claims included disability discrimination, racial discrimination, sexual discrimination, retaliatory discharge for filing a worker's compensation claim, retaliation for making a discrimination complaint, negligent supervision and training, and intentional infliction of emotional distress. The Court of Appeals reversed the trial court on the claims regarding disability discrimination, racial discrimination, sexual discrimination, retaliatory discharge for filing a worker's compensation claim, and negligent supervision and training. It affirmed the trial court on the granting of summary judgment on the issues of retaliation for making a discrimination claim and for intentional infliction of emotional distress. The case was then remanded for further proceedings.

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."

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

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

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

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

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

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

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

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

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

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

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

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

Contractor Liability for Negligent Construction

I recently entered a summary judgment in favor of a contractor who had followed the directions of the Medina County Agricultural Society in constructing a obstacle course for an event at the Medina County Fair. The issue in the motion for summary judgment was whether this Court had to follow a decision by the Court of Appeals for the Ninth Appellate District that was entered in January of 2002 or whether, since the decision was issued before May of 2002, it is persuasive authority but not binding authority.

The decision involved is Staley v. Bogner Construction Company, 2002 Ohio 317, (Wayne Cty. Ct. of Appeals). That decision held that when a contractor or a subcontractor follows the plans of the owner in doing work on the owner's premises there is no duty owed to any person who uses the premises. The duty, if any exists, is owed by the owner of the premises, not the contractor.

Since the plaintiff could not cite to any decisions from the Court of Appeals for the Ninth District that were contrary to this holding, I found that the opinion of the Wayne County Court of Appeals was persuasive. Therefore, I followed the reasoning of the appellate court and granted summary judgment.

You can read the opinion by clicking here. Please remember that this decision is subject to an appeal.

Use of Public Records in Motions for Summary Judgment

I recently had a case where a plaintiff filed a motion for summary judgment against both a defendant on two counterclaims and a third party plaintiff on two claim. The claims were for negligent entrustment of a motor vehicle and negligent supervision of a minor. The counterclaims and the third party claims arose out of the following facts:

A minor is riding with her father in her mom's vehicle. The father is driving and the daughter is a passenger, and also a minor. The parents are divorced with the daughter living in the same house as her mother. On the day of the accident, the mother alleges that her vehicle was struck from behind by the defendant's vehicle and that her daughter was injured in the accident.

The mother brings a lawsuit against the defendant as next friend and guardian of the daughter. The defendant files an answer and a counterclaim as well as a third party complaint. The defendant's wife joins in the third party complaint.

The defendant alleges that he was not negligent and that the accident was actually caused by the father of the child. He also claims that the mother negligently entrusted her vehicle to her husband who was an incompetent driver. He claims that the negligence of the father caused the accident and that therefore he is not only not liable for the accident, but that both the mother and father of the child are liable to him. The father because he negligently caused the accident and the mother because she negligently entrusted the vehicle to her ex-husband.

The defendant's wife joined in the third party complaint claiming loss of services. She also alleged negligence against the father and negligent entrustment against the mother of the child.

Both the defendant and his wife also sued the mother for negligent supervision. Their argument was that the mother negligently supervised her daughter by allowing the daughter to ride with her ex-husband.

When the defendant and his wife filed responses to the mother's motion for summary judgment on the claims of negligent entrustment and negligent supervision, they attached purported copies of various court documents from Cuyahoga County courts. While there was an affidavit attached from the attorney representing the defendant and his wife, the documents were not certified. The issue then became whether I could consider such documents.

With regard to the motion for summary judgment on the issue of negligent supervision, the issue became whether a cause of action for negligent supervision can exist in a situation where a child is not the tortfeasor who caused the injury.

You can see my answer to the questions posed above and my analysis by clicking here. Please keep in mind that this decision is subject to appeal.

Expert Affidavit That Contradicts Prior Deposition Does Not Create Factual Issue to Prevent Summary Judgment

Unless Expert Sufficiently Explains Reason for the Contradiction

Pettiford v. Aggarwal, Slip Opinion No. 2010-Ohio-3237.
Montgomery App. No. 22736, 2009-Ohio-3642. Judgment of the court of appeals reversed, and cause remanded to the trial court for further proceedings.
Lundberg Stratton, O'Connor, O'Donnell, Lanzinger, and Cupp, JJ., concur.
Brown, C.J., concurs in part and dissents in part.
Pfeifer, J., dissents and would affirm the judgment of the court of appeals.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-3237.pdf

(July 14, 2010) The Supreme Court of Ohio ruled today that when the affidavit of a retained nonparty expert is submitted in opposition to a pending motion for summary judgment, and statements in the affidavit contradict testimony given by the same expert during a prior deposition, the affidavit does not create a “genuine issue of material fact” that prevents summary judgment unless the expert sufficiently explains the reason for the contradiction.

Applying that holding to a Montgomery County medical malpractice case, the Court reversed a decision of the 2nd District Court of Appeals and remanded the case to the trial court for further proceedings. The Court’s 5-2 majority decision was written by Justice Maureen O’Connor.

The case involved a suit filed by Barbara Pettiford of Dayton against Dr. Rajendra Aggarwal. Pettiford alleged that in analyzing a chest x-ray taken in 1999, Dr. Aggarwal negligently failed to detect a benign tumor in her lung.

Pettiford identified Dr. Trent Sickles as an expert witness to provide testimony in support of her claim. In responding to questions posed by Dr. Aggarwal’s attorneys during a pretrial deposition, Dr. Sickles indicated that he did not have an opinion regarding whether Dr. Aggarwal’s acts or omissions had resulted in Pettiford’s injuries, and did not plan to testify with regard to the issue of causation. Dr. Aggarwal subsequently filed a motion for summary judgment to dismiss Pettiford’s complaint, arguing that because she had not provided expert testimony attesting that her injuries were the result of the doctor’s acts or omissions, Pettiford had not met the requirements for her malpractice claim to proceed to trial.

In opposition to the summary judgment motion, Pettiford submitted an affidavit signed by Dr. Sickles stating that in his opinion Dr. Aggarwal’s failure to detect the tumor in 1999 was responsible for subsequent medical treatment that Pettiford received. Dr. Aggarwal filed a motion to strike the affidavit, citing a 2006 Supreme Court of Ohio decision, Byrd v. Smith, which held that an affidavit submitted by a party opposing summary judgment that contradicted the same person’s earlier deposition testimony, without a sufficient explanation for the contradiction, did not prevent an award of summary judgment. Without ruling on the motion to strike or stating the legal rationale for its decision, the trial court granted summary judgment in favor of Dr. Aggarwal.

Pettiford appealed. On review, the 2nd District Court of Appeals reversed the trial court’s grant of summary judgment and remanded the case for further proceedings. In a divided opinion, the court of appeals held that the Supreme Court’s Byrd decision was not applicable because Byrd addressed only contradictory affidavits submitted by self-interested parties in a case, whereas the source of the disputed affidavit in this case was a third-party expert witness. The Supreme Court agreed to review the 2nd District’s decision and determine whether the legal reasoning of its Byrd decision also applies in cases where an affidavit submitted by a retained expert witness in opposition to a summary judgment motion contradicts testimony by that same expert in a prior deposition.

Writing for the majority, Justice O’Connor noted that a retained expert witness in a civil action has a close working relationship with the party on whose behalf he or she offers testimony, and also with that party’s attorney. Because of this and other parallels between a party and a retained expert witness, the majority determined that the rationale supporting the Byrd rule is germane in the case of a contradictory affidavit of a retained expert witness. Justice O’Connor wrote: “The retained expert witness is engaged to review the facts and offer opinion testimony on the essential, material elements of the claim at issue. In essence, the expert is an extended voice of the party and the proponent of the party’s claims. ... Unlike an attorney’s limited contact with a fact witness or a treating physician, an attorney’s direction of a retained, nonparty expert is significant, akin to the attorney’s direction of a party. The attorney directs the expert as to the subject matter upon which an opinion is needed, helps to determine what evidence the expert reviews, and works closely with the expert throughout the litigation to prove or defend against the causes of action.”

“ ... While the attorney technically does not represent the expert during the expert’s deposition, the attorney customarily prepares the expert for the deposition and supports the expert during the deposition just as he or she would with a party. And the attorney often acts during an expert’s deposition as he or she would act during a party’s deposition, objecting to opposing counsel’s questioning and rehabilitating the expert if necessary. If the attorney is dissatisfied with the expert’s deposition testimony or believes that a misstatement has been made, the attorney has the ability to clarify the deposition on the record. ... The numerous parallels between the degree of control an attorney has over a party and over a retained, nonparty expert lead us to the conclusion that Byrd’sruling should apply to contradictory affidavits of retained, nonparty experts to prevent the use of a self-serving affidavit to defeat summary judgment. If a retained, nonparty expert is permitted to defeat summary judgment at the eleventh hour by changing his or her opinions without a sufficient explanation, summary judgment will be rendered meaningless.”

“We hold that an affidavit of a retained, nonparty expert contradicting the former deposition testimony of that expert and submitted in opposition to a pending motion for summary judgment does not create a genuine issue of material fact to prevent summary judgment unless the expert sufficiently explains the reason for the contradiction.”

Applying that holding to the disputed affidavit in this case, Justice O’Connor wrote: “The determination of whether Dr. Sickles’ affidavit contradicted his deposition without a sufficient explanation for the alleged contradiction is a factual determination that is properly made by the trier of fact. The trial court did not expound on its reasoning for granting Dr. Aggarwal’s motion for summary judgment and never ruled on the motion to strike Dr. Sickles’ affidavit, and the appellate court declined to apply the Byrd analysis. In light of our clarification of Byrd’sapplicability, the appropriate course is to remand this matter to the trial court to apply the analysis set forth herein. Accordingly, we remand this cause to the trial court to now engage in that analysis.

Justice O’Connor’s opinion was joined by Justices Evelyn Lundberg Stratton, Terrence O’Donnell, Judith Ann Lanzinger and Robert R. Cupp.

Chief Justice Eric Brown entered a separate opinion in which he agreed with the majority’s remand of the case to the trial court for further proceedings, but dissented from its expansion of the Byrd decision to cases involving retained experts. He wrote: “From the record, it is clear that the nature of Dr. Sickles’s affidavit and deposition testimony has not been addressed explicitly by the lower courts. I agree with the majority that the determination of whether a contradiction exists should be made by the trial court. Therefore, I would remand this matter to the trial court for a determination of whether a contradiction exists. I find that no discussion of whether to extend the holding of Byrd to retained, nonparty experts is warranted until there has been a clear determination that the affidavit contradicts, not merely supplements, the deposition testimony.”

Justice Paul E. Pfeifer dissented without opinion, stating that he would affirm the ruling of the court of appeals.

Contacts
Lawrence J. White, 937.294.5800, for Barbara Pettiford.

Kevin W. Popham, 614.485.1800, for Dr. Rajendra K. Aggarwal.

Please note: Opinion summaries are prepared by the Office of Public Information for the general public and news media. Opinion summaries are not prepared for every opinion released by the Court, but only for those cases considered noteworthy or of great public interest. Opinion summaries are not to be considered as official headnotes or syllabi of Court opinions. The full text of this and other Court opinions from 1992 to the present are available online from the Reporter of Decisions. In the Full Text search box, enter the eight-digit case number at the top of this summary and click "Submit."

Judge Kimbler Decision on Withdrawing Admissions

Below is the text of an journal entry that Judge Kimbler released on February 5, 2006 dealing with withdrawal of admissions made pursuant to Civ. R. 36. It contains a discussion of a recent case from the Ninth District Court of Appeals dealing with the withdrawal of matters deemed admitted under Civ. R. 36.


Plaintiff has moved for summary judgment on his Complaint, pursuant to Ohio Civil Rule 56(B). Plaintiff claims he is entitled to judgment in his favor on the issue of liability, and asks that the Court set the case for hearing solely on the issue of damages. In making this assertion, Plaintiff is relying on Defendant’s failure to respond to a Request for Admissions in a timely manner.

After considering the litigants’ briefs relative to Plaintiff’s Motion for Summary Judgment and the evidence presented in opposition to said Motion, the Court finds that there are genuine issues as to material facts in this case.

As the Ninth District Court of Appeals pointed out in Dennison v. Koba (1993), 86 Ohio App.3d 605, 609, “A summary judgment precludes a jury’s consideration of a case and should, therefore, be used sparingly, only when reasonable minds can come to but one conclusion.” Accordingly, Plaintiff’s Motion for summary judgment is denied.

The Court further finds that Defendant’s Motion to Withdraw Admission is well taken. Civil Rule 36, which governs requests for admissions, provides “Any matter admitted under this rule is conclusively established unless the court on motion permits withdrawal or amendment of the admission. *** The court may permit withdrawal or amendment when the presentation of the merits of the action will be subserved thereby and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice him in maintaining his action or defense on the merits.”

In Albrecht v. Hambones Corporation, 2002 Ohio 5939, Summit App. No. 20993, the Ninth District Court of Appeals held it is an abuse of discretion to deny a party’s request to withdraw admissions without a showing that allowing withdrawal or amendment of the admissions would prejudice the party seeking admission. In the case now before the Court, Plaintiff has not offered any evidence that it would be prejudiced by allowing Defendants to withdraw the admissions. Accordingly, Defendants’ Motion to Withdraw Admissions is granted.