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. 

Ohio Supreme Certifies Conflict in Mortgage Case

The Ohio Supreme Court has certified a conflict between two appellate decisions regarding mortgage foreclosure cases. The questions certified for conflict are stated as follows:

"1. Whether a judgment decree in foreclosure is a final appealable order if it includes as part of the recoverable damages amounts advanced by the mortgagee for inspections, appraisals, property protection and maintenance, but does not include specific itemization of those amounts in the judgment.

"2. Whether a mortgagor that contests amounts expended by a mortgagee for inspections, appraisals, property protection and maintenance can challenge those amounts as part of the proceedings to confirm the foreclosure sale, and appeal any adverse ruling in an appeal of the order of confirmation."

The two decisions that are in conflict are CitiMortgage, Inc. v. Roznowski, 2012 Ohio 4901, from the Fifth District and  LaSalle Bank Natl. Assn. v. Smith, 7th Dist. No. 11 MA 85, 2012 Ohio 4040 from the Seventh District. 

Ohio Supreme Court to Resolve HB 86 Conflict

HB 86 raised the felony theft level from $500 to $1000.00. The bill stated that anyone found guilty before its effective date of 9.30.2011 but sentenced after that date for stealing less than $1000 but more than $500 would be sentenced as if for a misdemeanor. The issue then became whether the defendant was being sentenced for a felony or for a misdemeanor? That is would the sentencing entry read that the defendant was convicted for a felony, but with a misdemeanor sentence, or was convicted of a misdemeanor with a misdemeanor sentence?

This issue has caused a conflict in Ohio's courts of appeals. The Ninth has ruled that the defendant has been convicted of a felony but other appellate courts have held that such a defendant is convicted of a misdemeanor. The issue to be resolved is stated this way by the Ohio Supreme Court: "A defendant [may] benefit from a decrease in a classification and penalty of an offense by the General Assembly [that becomes effective] between the time the defendant committed the offense and the time of his sentencing on that offense[.]" 

The Ninth decision accepted for review is State v. Taylor, 2012 Ohio 5403.

Changes to R.C. 2929.13 (B)

On March 22, 2013, an amended version of R.C. 2929.13 (B) goes into effect. The changes are show below. If the text is lined through, then that means that the language was taken out of 2929.13 (B). If the text is underlined, that means that the language was added. Among other things, the new language clarifies that any prior felony conviction, not just one occurring within two years, means that a judge doesn't have to impose community control sanctions when sentencing for a non-violent fourth or fifth degree felony. 
The entire bill, which contains other changes, can be read by clicking here. 

(B)(1)(a) Except as provided in division (B)(1)(b) of this section, if an offender is convicted of or pleads guilty to a felony of the fourth or fifth degree that is not an offense of violence, the court shall sentence the offender to a community control sanction of at least one year's duration if all of the following apply:

(i) The offender previously has not been convicted of or pleaded guilty to a felony offense or to an offense of violence that is a misdemeanor and that the offender committed within two years prior to the offense for which sentence is being imposed.

(ii) The most serious charge against the offender at the time of sentencing is a felony of the fourth or fifth degree.

(iii) If the court made a request of the department of rehabilitation and correction pursuant to division (B)(1)(c) of this section, the department, within the forty-five-day period specified in that division, provided the court with the names of, contact information for, and program details of one or more community control sanctions of at least one year's duration that are available for persons sentenced by the court.

(iv) The offender previously has not been convicted of or pleaded guilty to a misdemeanor offense of violence that the offender committed within two years prior to the offense for which sentence is being imposed.

(b) The court has discretion to impose a prison term upon an offender who is convicted of or pleads guilty to a felony of the fourth or fifth degree that is not an offense of violence if any of the following apply:

(i) The offender committed the offense while having a firearm on or about the offender's person or under the offender's control.

(ii) The offender caused physical harm to another person while committing the offense.

(iii) The offender violated a term of the conditions of bond as set by the court.

(iv) The court made a request of the department of rehabilitation and correction pursuant to division (B)(1)(c) of this section, and the department, within the forty-five-day period specified in that division, did not provide the court with the name of, contact information for, and program details of any community control sanction of at least one year's duration that is available for persons sentenced by the court.

(v) The offense is a sex offense that is a fourth or fifth degree felony violation of any provision of Chapter 2907. of the Revised Code.

(vi) In committing the offense, the offender attempted to cause or made an actual threat of physical harm to a person with a deadly weapon.

(vii) In committing the offense, the offender attempted to cause or made an actual threat of physical harm to a person, and the offender previously was convicted of an offense that caused physical harm to a person.

(viii) The offender held a public office or position of trust, and the offense related to that office or position; the offender's position obliged the offender to prevent the offense or to bring those committing it to justice; or the offender's professional reputation or position facilitated the offense or was likely to influence the future conduct of others.

(ix) The offender committed the offense for hire or as part of an organized criminal activity.

(x) The offender at the time of the offense was serving, or the offender previously had served, a prison term.

(xi) The offender committed the offense while under a community control sanction, while on probation, or while released from custody on a bond or personal recognizance.

(c) If a court that is sentencing an offender who is convicted of or pleads guilty to a felony of the fourth or fifth degree that is not an offense of violence believes that no community control sanctions are available for its use that, if imposed on the offender, will adequately fulfill the overriding principles and purposes of sentencing, the court shall contact the department of rehabilitation and correction and ask the department to provide the court with the names of, contact information for, and program details of one or more community control sanctions of at least one year's duration that are available for persons sentenced by the court. Not later than forty-five days after receipt of a request from a court under this division, the department shall provide the court with the names of, contact information for, and program details of one or more community control sanctions of at least one year's duration that are available for persons sentenced by the court, if any. Upon making a request under this division that relates to a particular offender, a court shall defer sentencing of that offender until it receives from the department the names of, contact information for, and program details of one or more community control sanctions of at least one year's duration that are available for persons sentenced by the court or for forty-five days, whichever is the earlier.

If the department provides the court with the names of, contact information for, and program details of one or more community control sanctions of at least one year's duration that are available for persons sentenced by the court within the forty-five-day period specified in this division, the court shall impose upon the offender a community control sanction under division (B)(1)(a) of this section, subject to divisions (B)(1)(b)(i) and (ii) of this section. If the department does not provide the court with the names of, contact information for, and program details of one or more community control sanctions of at least one year's duration that are available for persons sentenced by the court within the forty-five-day period specified in this division, the court may impose upon the offender a prison term under division (B)(1)(b)(iii)(iv) of this section.

(d) A sentencing court may impose an additional penalty under division (B) of section 2929.15 of the Revised Code upon an offender sentenced to a community control sanction under division (B)(1)(a) of this section if the offender violates the conditions of the community control sanction, violates a law, or leaves the state without the permission of the court or the offender's probation officer.

(2) If division (B)(1) of this section does not apply, except as provided in division (B)(3), (E), (F), or (G) of this section, insentencing an offender for a felony of the fourth or fifth degree, the sentencing court shall determine whether any of the following apply:

(a) In committing the offense, the offender caused physical harm to a person.

(b) In committing the offense, the offender attempted to cause or made an actual threat of physical harm to a person with a deadly weapon.

(c) In committing the offense, the offender attempted to cause or made an actual threat of physical harm to a person, and the offender previously was convicted of an offense that caused physical harm to a person.

(d) The offender held a public office or position of trust and the offense related to that office or position; the offender's position obliged the offender to prevent the offense or to bring those committing it to justice; or the offender's professional reputation or position facilitated the offense or was likely to influence the future conduct of others.

(e) The offender committed the offense for hire or as part of an organized criminal activity.

(f) The offense is a sex offense that is a fourth or fifth degree felony violation of section 2907.03, 2907.04, 2907.05, 2907.22, 2907.31, 2907.321, 2907.322, 2907.323, or 2907.34 of the Revised Code.

(g) The offender at the time of the offense was serving, or the offender previously had served, a prison term.

(h) The offender committed the offense while under a community control sanction, while on probation, or while released from custody on a bond or personal recognizance.

(i) The offender committed the offense while in possession of a firearm.

(3)(a) If the court makes a finding described in division (B)(2)(a), (b), (c), (d), (e), (f), (g), (h), or (i) of this section and if the court, after considering the factors set forth in section 2929.12 of the Revised Code, finds that a prison term is consistent with the purposes and principles of sentencing set forth in section 2929.11 of the Revised Code and finds that the offender is not amenable to an available community control sanction, the court shall impose a prison term upon the offender.

(b) Except as provided in division (E), (F), or (G) of this section, if the court does not make a finding described in division (B)(2)(a), (b), (c), (d), (e), (f), (g), (h), or (i) of this section and if the court, after considering the factors set forth in section 2929.12 of the Revised Code, finds that a community control sanction or combination of community control sanctions is consistent with the purposes and principles of sentencing set forth in section 2929.11 of the Revised Code, the court shall impose a community control sanction or combination of community control sanctions upon the offender determining whether to impose a prison term as a sanction for a felony of the fourth or fifth degree, the sentencing court shall comply with the purposes and principles of sentencing under section 2929.11 of the Revised Code and with section 2929.12 of the Revised Code.

Ninth District Court of Appeals Releases Seven Opinions on Monday, March 18, 2013

The Court of Appeals for the Ninth Appellate District, which covers Lorain, Medina, Summit, and Wayne Counties released seven opinions on Monday, March 18. Five were from Medina County, one was from Lorain County, and the remaining opinion was from Wayne County.

The five opinions from Medina County were: 

Sturdevant v. Likley, 2013-Ohio-987, which deals with the torts of defamation, false light, and intentional infliction of emotional distress. The appellant was appealing the granting of a motion for summary judgment. The opinions contains a discussion of the Restatement of Torts, 2nd, Sections 602 and 652. The decision affirmed the trial court's granting of the motion for summary judgment. 

State v. Samples, 2013-Ohio-986, which deals with the issue of sufficiency of the evidence in a case involving driving while under the influence. The Court of Appeals found that the evidence was insufficient to sustain a conviction for operating while under the influence of a drug of abuse. In particular the Court noted that the State had not produced evidence showing what "drug of abuse" Mr. Samples had consumed. Since the term "drug of abuse" is the same as the term "controlled substance" used in a different section of the Revised Code, and since that section lists the names of "controlled substances", it was necessary for the State to establish the identity of the "drug of abuse." The Court reversed Mr. Samples' conviction. 

State v. Miller, 2013-Ohio-985, which deals with the issues of whether a Ohio State Highway Patrol Trooper had a reasonable suspicion to justify the continued detention of a car's operator who had originally been stopped for expired license plates, and whether the consent of the driver to a search was voluntary. The Court of Appeals overruled the first assignment of error, but granted the second assignment. Although there were three assignments of error listed, since the Court of Appeals reversed on the second assignment. the Court did not issue any decision on the third assignment. 

Michaels v. Michaels, 2013-Ohio-984, which deals with the issue of spousal support and contempt of court for non-payment of spousal support. The issue of spousal support dealt with whether the husband, who was obligated to pay spousal support, had shown a significant change of circumstances to justify a modification of his support order. The trial court concluded that he had, and the Court of Appeals affirmed that decision. On the second assignment of error, the Court of Appeals held that the doctrine of res judicata barred the wife from raising the issue on the appeal covered by the March 18th decision. 

State v. Ibrahim, 2013-Ohio-983, which deals with the issue of whether there was sufficient evidence to allow the State to withstand a motion for a directed verdict made pursuant to Crim. R. 29. The charge involved possession of a controlled substance. The issue on appeal was whether there was enough evidence to allow the jury to find that the defendant constructively possessed the controlled substance. The trial court found that there was, but the Court of Appeals disagreed. The decision contains a discussion of the concept of "constructive possession" and its application to a situation involving multiple occupants of a van, which had been involved in an traffic accident. 

The Lorain County opinion was: 

Bonnette v. Bonnette, 2013-Ohio-981,  which deals with the issue of dismissal of an appeal for failure to file the appeal timely. The opinion contains an interesting discussion of Civ. R. 52, which concerns findings of fact and conclusions of law, and App. R. 4. 

The Wayne County opinion was: 

State v. Hillman, 2013-Ohio-982, which deals with the issue of whether a defendant could raise an issue of withdrawal of a no-contest plea in a post-conviction relief petition when it could have been raised on a direct appeal. The Court of Appeals held that the trial court committed reversible error when it heard the post-conviction relief petition because the issue should have been raised on a direct appeal.