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 on July 15, 2013

The Court of Appeals for the Ninth Appellate District released five opinions on July 15, 2013. My summaries of these decisions appear below. 

State v. Zupancic, 2013-Ohio-3072 was an appeal of Ms. Zupancic's conviction for operating a motor vehicle while under the influence of alcohol. She listed one assignment of error. She argued that her counsel in the Wayne County Municipal Court case was ineffective. The appellate court affirmed her conviction. 

Ms. Zupancic argued that her counsel was ineffective because he didn't file a motion to suppress, didn't adequately prepare to argue about mitigation at her sentencing hearing, and didn't effectively advise her during plea negotiations. The Court of Appeals noted in its opinion that to sustain Ms. Zupancic's assignment of error would require it to engage in speculation and to rely on evidence outside of the record. The Court also noted that usually the matters raised by Ms. Zupancic's appeal are addressed in a petition for post-conviction relief. Such relief, however, does not lie for municipal court proceedings. 

Fannie Mae v. Trahey, 2013-Ohio-3071 was an appeal from a decision of the Lorain County Common Pleas Court granting a foreclosure and judgement on a promissory note on a motion for summary judgement. Mr. Trahey opposed the motion arguing that there was a question of material fact regarding whether Fannie Mae had standing to bring the action for foreclosure. The Court of Appeals reversed and remanded the case back to the trial court. 

There were two assignments of error on appeal. One was that under the reasoning of Fed. Home Loan Mtge. Corp. v. Schwartzwald, 134 Ohio St.3d 13, 2012-Ohio-5017 Fannie Mae had to show that it had standing at the time that it filed the foreclosure action. The appellate court found that there was a material action of fact regarding this matter. The second assignment of error was rendered moot by the action on the first assignment and therefore wasn't addressed by the Court of Appeals. 

King v. King, 2013-Ohio-3070 was a decision affirming the Medina County Court of Common Pleas, Domestic Relations Division denying a motion by Mr. King to remove a guardian ad litem. Applying an abuse of discretion standard on review the appellate court found that Mr. King had not shown that the guardian ad litem should be removed. 

State v. Hatfield, 2013-Ohio-3069 was an appeal by the from a decision of the Lorain County Common Pleas Court dismissing the charge against Ms. Hatfield. The appeal was based on two grounds. 

The first was that only a county prosecuting attorney office may establish a pre-trial diversionary program and second the way the Lorain County Common Pleas Court had structured its diversionary program violated the constitutional principle of separation of powers. 

The Court of Appeals affirmed noting that there have been other appeals filed raising similar assignments of error but the record on appeal does not contain the details of the Lorain County program. The Court of Appeals noted that without such information it could not rule on the assignments of error made by the State and therefore had to affirm the trial court's dismissal of the charge. 

State v. Edwards, 2013-Ohio-3068 was an appeal from a decision of the Lorain County Common Pleas Court finding Mr. Edwards guilty of gross sexual imposition. Mr. Edwards listed several assignments of error. They included that the verdict was against the manifest weight of the evidence, that the evidence was insufficient to show that he committed the offense, that the jury instructions were erroneous, and that the jury verdict forms didn't show the level of the offense or the presence of aggravating circumstances. The Court of Appeals overruled all the assignments of error and affirmed the conviction. 

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 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 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 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 Lorain County Released on June 28, 2013

The Court of Appeals for the Ninth Appellate District released two decisions from Lorain County appeals on June 28, 2013.  My summaries of these decisions appear below. 

State v. Carlton, 2013-Ohio-2788 was a criminal appeal in which the trial court was affirmed. Mr. Carlton cited five assignments of error on appeal.

Mr. Carlton argued that the prosecutor's remarks during opening statement were a misstatement of the law and that even though his lawyer didn't object, the trial court committed plain error in not correcting the assistant prosecutor trying the case. 

He also argued that his conviction was against the manifest weight of the evidence and that his motion under Crim. R. 28 should have been granted because the state failed to produce sufficient evidence in its case in chief. 

He argued that the trial court erred in allowing in other acts evidence and that the trial court erred in its instructions by not requiring unanimity in the jury's verdicts. That assignment of error relied on an argument that the State had charged him with "multiple acts" while the State argued that it had charged him with "alternative means" of committing the crimes. The Court agreed with the State that the correct analysis was an "alternative means" analysis and not a "multiple acts" analysis. Judge Hensal's decision contains case citations from the Ohio Supreme Court on the "alternative means" versus "multiple acts" analysis and what each analysis requires. 

Altercare, Inc. v. Clark, 2013-Ohio-2785 is a case in which both Altercare, inc. and its former employee, Clark, filed appeals from a decision of the Lorain County Common Pleas Court regarding the issue of spoliation of evidence. 

Altercare had sued Clark for various causes of action related to her employment as its CEO and Clark had counterclaimed. Before litigation Clark's attorney had sent a letter to Altercare regarding a computer that Clark had used during her employment. Clark's attorney wanted the computer preserved or a mirror image made of its hard drive. During discovery it became apparent that Altercare had not preserved the computer's hard drive or made a mirror image of the hard drive. 

The trial court sanctioned Altercare for this spoliation of evidence by dismissing all of its counts against Clark. It did not, however, grant Clark's request for judgment on her counterclaim. Altercare appealed and Clark cross-appealed. Clark, however, failed to submit a merit brief in support of her cross-appeal, so it was dismissed. The Court then affirmed the trial court's decisions regarding the dismissal of the Altercare complaint. 

Judge Whitmore's opinion refers to the provision of Civ. R. 37 which concerns the preservation of electronically stored information, (ESI), and the factors that a trial court should consider when deciding to sanction a party for non-compliance. 

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. 

Court of Appeals Decision Released on June 17, 2013

The Court of Appeals for the Ninth Appellate District released one decision on June 17, 2013. The decision was State v. Leyda, 2013-Ohio-2495 and was an appeal from a decision of the Wayne County Municipal Court. Mr. Leyda appealed from his conviction for domestic violence. He raised three assignments of error. The first was that his counsel was ineffective for not attempting to present evidence of his wife's alleged prior bad acts. The second was that the trial court was guilty of judicial misconduct. The third was that the conviction should be overturned because there was no physical evidence corroborating the oral testimony of his wife. The Court of Appeals rejected all three assignments of error. Judge Belfance wrote a separate concurring opinion in which she stated that she would affirm because Mr. Leyda was relying on evidence outside of the trial court's record. 

Ninth District Opinions Released on June 24, 2013

The Court of Appeals for the Ninth Appellate District released three opinions on June 24, 2013. Two were from Medina County and one was from Lorain County. 

The case from the Lorain County Common Pleas Court  was State v. Malone, 2013-Ohio-2605, a criminal case in which the Court of Appeals affirmed the trial court's judgment. Mr. Malone cited two assignments of error. The first was that the trial court erred in not allowing him to withdraw his guilty plea. The second was that his counsel was ineffective in not advising him of the strength of the State's case and in not conducting a proper pre-trial investigation. The Court overruled both assignments of error. Judge Carr concurred in the judgment of the Court only since she would have affirmed on the basis of res judicata. She wrote in her concurring opinion that Mr. Malone could have raised these issues on a direct appeal and that since he didn't, he couldn't raise them on this appeal from the trial court's denial of his motion to withdraw his plea. 

The two Medina County cases were both criminal cases out of the Medina County Court of Common Pleas. In one case the appellate court affirmed the trial court and in the other case the court reversed and remanded. 

The case in which the trial court was affirmed was State v. Sebestyen, 2013-Ohio-2606. Mr. Sebestyen appealed from the trial court's decision overruling his motion to withdraw his guilty plea. The Court of Appeals affirmed the trial court's decision under the doctrine of res judicata. The Court noted that Mr. Sebestyen could have raised the issues on a direct appeal. The Court further noted that the fact that Mr. Sebestyen didn't file a direct appeal doesn't stop the doctrine from being applied to his appeal from the decision regarding his motion to withdraw his plea. 

The case in which the trial court was overruled was State v. Labriola, 2013-Ohio-2604. Labriola was convicted after a jury trial of complicity to commit arson. Mr. Labriola raised two assignments of error. The first was that his conviction was not based on sufficient evidence. The Court of Appeals rejected this argument. The second assignment of error was that the assistant prosecutor's comments during closing argument were an impermissible comments on Labriola's credibility and the credibility of other witnesses. The Court of Appeals accepted this assignment of error and reversed his conviction. The case was remanded back to the Common Pleas Court for a new trial. 

Video Review of Ohio's Criminal Rule 29

Below is the link to a short video clip, about 4:30, reviewing Ohio's Criminal Rule 29, which allows for a defendant to make a motion for a directed verdict of acquittal: 

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 10, 2013

The Court of Appeals for the Ninth Appellate District released eight opinions on June 10, 2013. Below are short summaries of the opinions. 

Vestige, Ltd. v. Mills, 2013-Ohio-2379 reversed a decision of the Medina County Common Pleas Court granting a directed verdict to the plaintiff on the defendant's counterclaim. The defendant had retained the plaintiff to perform a forensic examination of the computer belonging to the client of the defendant. The client was charged with possessing pornography involving minors on this computer. The plaintiff is a firm that offers computer forensic services. The defendant's client got convicted. The defendant believed that the plaintiff had breached its contract with the defendant by not providing its services in a competent and professional manner. 

During the presentation of the counterclaim the defendant did not call an expert witness. This led to the trial court granting the plaintiff's motion for a directed verdict. The appellate court reversed the trial court on the grounds that the allegations being made by the defendant could be understood by a lay jury and no expert witness was needed. 

Stanfield v. United States Steel Corp., 2013-Ohio-2378 reversed a decision from the Lorain County Common Pleas Court granting a motion for summary judgment filed by the defendant. The case involved whether the plaintiff was discharged for filing a workers' compensation claim. The Court of Appeals found that there were issues of material fact about whether the firing of the plaintiff was in retaliation for filing a workers' compensation and whether the employer's conduct was extreme and outrageous. The appellate court reversed and remanded for further proceedings. 

Rodriguez v. S. Star Corp., 2013-Ohio-2377 affirmed a decision of the Medina County Common Pleas Court overruling a decision of the Unemployment Compensation Review Commission that denied unemployment benefits to the plaintiff. The plaintiff was an employee of the defendant who was assigned to work with a crew chief that had repeatedly used racial slurs around the plaintiff. The plaintiff asked to be reassigned to other crews, but the supervisor refused even though he had honored such requests in the past. The plaintiff then quit. The UCRC found that he had quit without just cause. The trial court reversed that decision and the Court of Appeals affirmed the trial court. 

State v. Smetana, 2013-Ohio-2376 affirmed a decision of the Lorain County Common Pleas court that convicted the defendant of one count of sexual battery and one count of sexual imposition. The defendant appealed arguing that the trial judge had been biased against him, that his conviction was based on insufficient evidence, and that it was also against the manifest weight of the evidence. The Court of Appeals rejected all three assignments of error. 

State v. Jones, 2013-Ohio-2375 reversed a decision of the Lorain County Common Pleas Court that suppressed evidence seized as the result of a traffic stop. The trial court held that the officer did not have probable cause to make a warrantless search of the trunk of the defendant's car following the stop. The State argued that the search was justified on the basis of the automobile exception to the warrant requirement. The Ohio Highway Patrol trooper who stopped the vehicle smelled an odor of marijuana. He found marijuana "shake" in the passenger compartment of the car, but believed that the shake was not the source of the odor. He searched the trunk and found more drugs, including marijuana and heroin. By a 2 to 1 vote the Court of Appeals upheld the search. The decision contains an interesting dissent by Judge Belfance in which she reviews the history of the automobile exception to the Fourth Amendment. 

Wells Fargo Bank N.A. v. Horn, 2013-Ohio-2374 reversed of decision of the Lorain County Common Pleas Court that granted a summary judgment to Wells Fargo in a foreclosure action. The appellate court reversed and remanded with directions to dismiss the case without prejudice. The dismissal order was based on the recent Ohio Supreme Court case of Fed. Home Loan Mtge. Corp. v. Schwartzwald, 134 Ohio St.3d 13, 2012-Ohio-5017, ¶ 40.

Committe v. Rudolchick, 2013-Ohio-2373 reversed a decision granting a motion for summary judgment to a defendant in a negligent entrustment lawsuit. The Court of Appeals reversed because the documents cited in support of the motion were not evidentiary material required by Civ. R. 56. The Court pointed out that in the Ninth District a trial court may rely on documents that are not evidence as that term is used in Civ. R. 56. Here, though, the plaintiff objected to such documents and the trial court should not have considered them. Without the contested documents, the defendant did not establish that there was no issue of material fact. 

Artim v. Lorain Cty. Bd. of Dev. Disabilities, 2013-Ohio-2372 both reversed and affirmed a decision of the Lorain County Common Pleas Court that had granted motions for summary judgment filed by the Disabilities Board and an employee of the Board. The lawsuit involved injuries received by a child of the plaintiffs' while she was undergoing therapy at a facility run by the Board. The appellate court found that the trial court properly granted summary judgment to the Board on the basis of sovereign immunity but that it erred when it granted summary judgment to the employee. The appellate court wrote that there was a material issue of fact as to whether the employee's acts were wanton and malicious. Judge Carr dissented because she found that the employee as well as the Board should have had their motions for summary judgment granted.  

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. 

Hearsay & Appellate Review

Here is a link to a  short video I prepared on Ohio's law on Hearsay & Appellate Review: http://youtu.be/ZwP2RAlK3Ug

Ninth District Opinions Released on May 29, 2013

The Court of Appeals for the Ninth District released 10 decisions on May 29, 2013. All of the decisions were appeals from Summit County courts. The decisions are as follows:

State v. Stephens, 2013-Ohio-2223 was an appeal from convictions for complicity to commit aggravated murder and robbery. The most interesting issue on appeal was whether the State had violated Stephens' speedy trial rights by not trying him within 270 days. Stephens argued that the triple count provision applied since he was held in jail from the time of his arrest until the time of the trial. The Court of Appeals found that if either the triple count was applied or it wasn't the State brought him to trial within the required time. The opinion deals with the effect of a holder from another county and what happens when the holder is not entered into the record. In this case since Stephens agreed that he had a holder from Stark County and since the holder wasn't introduced into evidence, the Court of Appeals found that the holder applied for the entire period he was awaiting trial. 

Spade v. Taliwal, 2013-Ohio-2177 was an appeal by the administrator of an estate for a woman who had died following surgery. On appeal the administrator argued that the trial judge had abused her discretion in refusing to give a jury instruction on concurrent negligence. A majority of the Court of Appeals agreed. There is a very interesting dissent in which the meaning of the phrase "abuse of discretion" is examined. The case was remanded for a new trial on the issue of damages. 

State v. Roper, 2013-Ohio-2176 was an appeal by the State in a criminal case in which the State argued that there should have been two consecutive sentences for firearm specifications imposed and not concurrent sentences imposed. The Court of Appeals reversed because it found that while the trial court had merged offenses, the sentencing entry did not reflect that merger. The Court of Appeals went on to state that if an offense merges into another offense, then the trial court cannot impose either a concurrent or consecutive firearm specification sentence for that offense because that would be imposing a "penalty enhancement"  under circumstances where no penalty can be imposed on the underlying predicate offense. In short, once an offense is merged into another offense, no penalty can be imposed for the firearm specification that was attached to the merged offense. 

Rasberry v. Taylor, 2013-Ohio-2175 was an appeal from the Akron Municipal Court involving a unrepresented appellant and an appellee who was unrepresented at trial in a landlord-tenant dispute. The appellant raised issues regarding the unauthorized practice of law by the landlord and a co-owner of the property that he had rented. The Court of Appeals affirmed the trial court's award of damages as to the one owner, but not as to the other owner. 

The appellate court found that the co-owner never signed the complaint but that instead it was signed by Rasberry. Since Rasberry was apparently not an attorney, he couldn't sign on behalf of his co-owner. Therefore, as to the co-owner, the complaint may not have been filed. The appellate court remanded the case to determine the ramifications, if any, from the failure of Rasberry's co-owner to sign the complaint. 

Ohio Metal Servs., L.L.C. v. All-In Metals, 2013-Ohio-2174 was an appeal from a decision of the Summit County Court of Common Pleas involving a settlement agreement and proceedings to enforce that agreement. The Court of Appeals affirmed the trial court's rulings. 

May v. Lubinski, 2013-Ohio-2173 was an appeal from a decision of the Summit County Common Pleas Court involving a dispute between a trust called the Silver Lakes Estates and property owners in Silver Lakes. The case in the Common Pleas Court centered on the powers of the Board of Trustees. The owners challenged the power of the Trustees to make capital improvements and mandatory assessments for such improvements and to make certain expenditures. They also claimed that the Board breached its fiduciary duties to the owners and challenged the qualifications of certain trustees to serve on the Board. The Trust also appealed from the trial court's decision. 

The appellate court both affirmed and reversed parts of the trial court's opinion. The appellate court found that the trust language was unambiguous and that there was a genuine issue of material fact whether the trustees had breached their fiduciary duties. The appellate court also found that there was a genuine issue of material fact regarding the qualifications of one of the Board members to serve as trustee. The appellate court also found that the trial court's finding that a person serving as a trustee was not properly appointed was erroneous but its finding that another trustee was not properly serving was correct. 

State v. Ibn-Ford, 2013-Ohio-2172 concerned an appeal from convictions for one count of rape and four counts of domestic violence. The defendant alleged several grounds of error, but the Court of Appeals only sustained one. The error sustained was whether the trial court had complied with R.C. 2947.23(A) when it imposed court costs. The appellate court found that it had not and reversed and remanded on the issue of court costs. 

Fuline v. Green, 2013-Ohio-2171 was an appeal from an order of the Barberton Municipal Court ordering that the appellant, Green, pay attorney fees for proceedings following his denial of admissions. The Court of Appeals found that the matters that Green denied were at issue or were of no substantial importance, and therefore, the award of attorney fees to the plaintiffs was improper. The Court of Appeals reversed the trial court's award of attorney fees. 

Budd v. Budd, 2013-Ohio-2170 was an appeal from the Summit County Court of Domestic Relations. The appellate court reversed the trial court's order regarding division of property and remanded for further proceedings. Because of its disposition on the first assignment of error, it declined to reach the other assignments of error raised by the appellant. 

State v. Brooks, 2013-Ohio-2169 reversed a decision of the Summit County Common Pleas Court imposing consecutive 12 month sentences for two fifth degree felonies. The appellate court affirmed the trial court's imposition of the 12 months sentences. The reversal was because the trial court did not make the factual findings required by R.C. 2929.14(C)(4), as it was worded at the time Mr. Brooks was sentenced. 

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 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 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.