Cases from March 6, 2015
Welcome
back fellow readers and litigators. The
Ohio Sixth District released some cases this week, so let’s go see just how
many they…oh goodness, it’s eleven…and over half of them are not criminal
cases. Oh boy…
Little
late this week. I had two briefs to file
by Wednesday so this had to take a back seat.
I also start my vacation this week, so I’m going to try and make my
descriptions a bit shorter…I’m gonna miss a lot of the finer details, but, hey,
we’re trying something new…
Cases
this week:
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State/Village
of Kelleys Island v. Tremmel – E-13-076; E-14-026 –
E-14-084
Before
I begin, I want to direct your attention to the case numbers above. I wasn’t about to write this
all out, but
that isn’t three numbers; that’s 14-026 THROUGH 14-084. There are SIXTY cases represented
here.
Why
are there sixty cases in this decision?
Well, because Appellant, Martin Termmel was convicted after a jury trial
of sixty counts of “Failing to Comply with the Kelleys Island Zoning
Inspector.”
This
case is a story about a fence post. A
few of them actually. All of them built
on the property of Appellant. However,
Appellant lives in a “Environmental Protection Overlay District.” What is a EPOD you ask?
Well it’s…a place you can’t build any fence,
wall, or hedge over 4.5 feet tall. The
EPOD is defined as “the areas in the village 125 feet from the natural
shoreline, and that word “natural” is important. Kelleys Island defines “natural shoreline” as
the “ordinary high water elevation of 573.4 feet.”
In
2011, Appellant began constructing a fence, erecting posts that were about ten
feet tall. An inspector came out and
told him “Hey, get a building permit because you’re not allowed to do
this.” Appellant did not believe he was
required to because he had an existing fence due to a natural hedge.
Appellant
filed for a permit. It was granted with
the exception that Appellant had to remove the existing posts and construct
only a 4.5 foot tall fence. Appellant
appealed repeatedly, including to the Erie County Common Pleas Court via an
administrative appeal, all were denied.
Appellant did not remove the posts.
In 2013, the Inspector sent a letter to Appellant to remove the
posts. Instead, Appellant filed for a
zoning permit to construct a six foot fence.
That request was denied and came with another order from the Inspector to
remove the posts. Appellant did not.
Failure
to correct violations constitutes a misdemeanor of the fourth degree, and each
day is a separate offense. Between May 7
through July 5, Appellant received 60 violations. The case proceeded to a Jury Trial which
found Appellant guilty of all 60.
Appellant
raised the following assignments of error:
1) The
trial court erred when it denied Tremmel’s motion to dismiss.
2) The
trial court erred when it denied Tremmel’s timely request for essential
findings of fact in support of trial court’s denial of his motion to dismiss.
3) The
trial court erred when it refused to admit evidence regarding selective
enforcement of zoning regulations.
4) The
trial court erred when it refused to instruct the jury regarding selective
enforcement of zoning regulations.
5) The
trial court erred when it refused to instruct the jury regarding the zoning
code that defendant was alleged to have violated.
6) The
trial court erred when it failed to admit copies of the code sections from the
Kelleys Island zoning code.
7) The
trial court’s answer to a question from the jury during deliberations was
erroneous and prejudicial which constituted an abuse of discretion and an error
of law warranting a new trial.
8) The
trial court erred when it denied defendant’s motion for judgment of acquittal
pursuant to Ohio Crim.R. 29(A) and (C).
9) The
trial court erred when it denied defendant’s motion for a new trial.
10)
The jury verdict and the subsequent judgment entry finding defendant guilty of
violating section 152.067 of the Kelley’s Island Zoning Code were against the
manifest weight of the evidence, insufficient as a matter of law, or contrary
to law.
11)
The trial court’s judgment of sentence was against the manifest weight of the
evidence, insufficient as a matter of law, or contrary to law.
Going
to be honest here…there’s 11 assignments of errors and none of them are really
worth going all that indepth over. Many
of these make duplicate or similar arguments.
I mean, he argued that they Trial Court didn’t let him submit copies of
the zoning code as evidence, despite the Trial Court instructing the jury on
the law; argued selective enforcement despite the Inspector being rather
restrained before filing complaints…at the end of the decision, the Court
affirmed Appellant’s convictions.
Comments: I…am not a
fan of the arguments in this case. I like
making off the wall arguments, sure; just ask the Lucas County
Prosecutors. Still, having that kind of
a list of assignments of errors over zoning violations…I don’t know about that.
…all
over a fence…
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Yost v. City
of Sandusky, et al. – E-14-
011
Appellant
Michael Yost appeals the granting of Summary Judgment against him in his
employment discrimination and retaliation action against the City of Sandusky.
Appellant,
a former Sandusky Firefighter, was diagnosed with Parkinson’s disease. A few years after
disclosing this to his
chief, others started noticing some changes in Appellant’s gait, Appellant
appeared to have less energy, etc. An
assistant chief made notes from 2008 to 2011.
In 2008, Appellant was placed on administrative leave pending a physical
exam. Appellant was returned to active
duty following the exam. This kept
happening over and over until 2010 when a doctor said that Appellant was unable
to perform the duties of his position.
Appellant had already filed an action in 2009 alleging “regarded as
disabled” disability discrimination and retaliation for engaging in protected
activity.
Sometime
in 1991, Appellant was promoted to Battalion Chief. However, in 2010, the position was
eliminated
and Appellant was moved to the next highest rank, Captain.
During
the suit, Appellees filed for Summary Judgment. Appellant replied untimely and
his response was stricken from the record.
Appellant voluntarily dismissed his suit, refiling it in 2013. Appellee again filed for Summary
Judgment. The Trial Court granted the
motion, finding no genuine issues of fact in dispute and that Appellee’s
reliance on doctor examinations and recommendations prohibited the lawsuit from
prevailing.
Appellant
raised the following assignments of error:
1) The
trial court erred by granting summary judgment in favor of defendants-appellees
on plaintiff-appellant’s “regarded as disabled” disability discrimination
claim.
2) The
trial court erred in granting summary judgment in favor of defendants-appellees
on plaintiff-appellant’s retaliation claim.
3) The
trial court abused its discretion by imposing discovery sanctions without a
hearing.
4) The
trial court abused its discretion by imposing an unreasonable attorney fee
sanction.
The
Court disagreed with Appellant’s arguments on assignments of error 1 and 2,
finding that Appellees acted appropriately.
Assignments
3 and 4 go to sanctions…that were given in the first, now dismissed case. Appellant tried to
appeal those orders over a
year later and in a different case.
Surprising to no one, the Court was having none of that.
The
Trial Court was affirmed.
Comments: Parkinson’s
is no fun. My Pastor has been diagnosed with it
too. That being said…I think there’s
just a bit of stubbornness involved in this case.
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Barrett v.
Soltesz – E-14-089
Appellant
E. Dean Soltesz appealed the granting of a Domestic Violence Civil Protection
Order against him, in favor of Appellee, his sister. Appellee alleged that Appellant had been
harassing her since 2007 and the harassment originated regarding their father’s
probate estate, and included Appellant contacting her current neighbor, her
ex-husband, her ex-boyfriend, various family members, and the pastor of her
church, to falsely accuse her of adultery.
Appellee also alleged that Appellant damaged her character so badly on
the internet that it was hard for her to gain employment in her small
community.
Serving
the Petition for a CPO was rather difficult; the Sherriff tried twice, a
certified letter went unclaimed, leading the Trial Court to deliver the letter
by ordinary US Mail. The letter was
returned marked “failure of delivery.”
The notation was hand written and was not endorsed by the Post
Office. With the returned letter was a
note from a “concerned U.S. citizen” who claimed he or she received the letter
and opened it by accident. Upon
realizing this, he or she contacted an attorney who suggested they write
“failure of delivery” on it and return it to the Post Office. The Trial Court originally entered
a CPO on
April 17, however, despite finding that Appellant was properly served, the
Trial Court found excusable neglect as to why Appellant did not appear for the
hearing and vacated the ruling, and scheduled a new full hearing on May 15,
2014.
At the
hearing both Appellant and Appellee appeared pro se. Appellant still objected to the lack of
service of the petition and then the parties testified. At the conclusion of the hearing, the
Trial
Court issued the CPO.
Appellant,
acting pro se, raised the following assignments of error…(I normally format
these, but…I have no idea how to make these make any sense, so…I’m just copying
them verbatim):
I. The
trial court lacked jurisdiction over the person, and jurisdiction of process of
service, when it held the special hearing of May 15, 2014 due to:
A) The
petition in the case having been filed on December 12, 2012,
B)
Failure of petitioner to provide service of petition within six months to
petitioner under Civ.R. 4(E) without good cause shown, and accordingly any
judgment issued against defendant was void ab initio.
II.
The domestic relations court lacked subject-matter jurisdiction as well as
failure to state a claim upon which relief can be granted to issue the CPO
resulting from:
A)
Petitioner’s admission that defendant had not inflicted any physical harm on
her
B)
Hearsay of alleged slanderous statements about petitioner allegedly made by
defendant to:
1)
Family members of the parties
2) The
next-door neighbor of the petitioner
3) The
ex-husband of the petitioner
C)
Said statements allegedly had caused her mental and emotional harm, which she
claimed fulfilled the statutory requirement for “stalking,” and
D) The
witnesses to whom those statements were allegedly made were unavailable for the
hearing, because petitioner alleged she did not have enough time to subpoena
them for the May 15, 2014 hearing.
III.
The trial court lacked jurisdiction of process to not permit defendant to
provide qualifications in explanation to the “yes or no” answers to any
allegations against him in the petition under threat of contempt denied (sic)
him his right to present evidence in testimony and rebuttal, and his right to
present a defense as required for a fair hearing.
IV.
The trial court erred to the prejudice of the defendant, when it failed to take
judicial notice of his Exhibit A, a copy of the notice of hearing of April 17,
2011 for a “pre-trial” hearing in the guardianship and land sale cases,
involving their dad proving that petitioner failed to list on the petition all
present and pertinent past court cases she has been involved in with the
defendant, proving she violated ORC 2921.11, when she signed and filed the
petition.
V. The
trial court lacked jurisdiction of process to issue any CPO against defendant
due to the court’s restricting defendant’s right (sic) exercise his duty to
provide grounds for his objections under threat of holding him in contempt of
court for any thing (sic) other than “yes or no” answers.
VI.
The domestic relations court lacked subject-matter jurisdiction to hear matters
contained in the petition, which originated from the jurisdiction of the
probate court under ORC 2111.14(A)(2), ORC 2101.24(A)(1)(g), (m), (n), (o),
(q), (s), (t), (w), (bb), (cc), (dd); and (2).
VII.
The trial court abused its discretion to the prejudice of respondent in taking
the testimony of the petitioner over the denials of the allegations by the
defendant, when it issued the CPO.
VIII.
The trial court was without jurisdiction in holding the hearing below, and
subsequently issuing the CPO as a form of retaliation against defendant for
conducting an investigation as to whether the probate judge has been concealing
the fact that a hearing record is truly available for appellate review in the
related probate cases.
…yeah…
So,
service by mail is considered delivered upon mailing unless Postal Officials
return the envelope with an endorsement showing failure of delivery. Amazingly, THIS DOES NOT
INCLUDE ANONYMOUS
HANDWRITTEN NOTES.
Appellant
argued that the Trial Court was unfair by forcing him to respond with only
“Yes” or “No” to the Trial Court’s questions.
As it turns out, Appellant liked to interrupt everyone, and was also
given the chance to present his own testimony without interruption.
I’m
not going to go much further with this case.
All I’m going to do is quote the decision directly with this:
“Following the presentation of his testimony, appellant then stated
that he was reserving his right to present the matter to a jury, stated that he
was not provided an opportunity to be represented by counsel, inquired whether
the proceedings were being conducted under admiralty and maritime law,
requested either a cease and desist order against appellee or a dismissal of
the case, and objected to the court issuing a civil protection order because it
gives the impression that the trial court is retaliating against appellant for
investigating the actions of the probate court in allegedly concealing an entire
hearing record in appellant’s father’s guardianship proceedings “
As a
side note, and I’ve never actually seen this before, the Court copied and
pasted Appellant’s entire argument as to Assignment of Error #8 and stated,
basically “We cannot find any procedural error identified in this argument.”
The
Trial Court was affirmed.
Comments: This sounds
like a pro se that has a lot of fun
filings to read…
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Reeves v.
Reeves – E-14-112
So,
how’s this for a nutshell: Appellant Mr. Reeves appealed the dismissal of his
petition for divorce. You have to reside
in the State for at least six months prior to the filing of the petition. Appellant had a
Florida address listed on his
complain for himself.
The
Trial Court dismissed for not having Subject Matter Jurisdiction. The Court
affirmed.
Comments: Another Pro
Se Appellant. Wouldn’t it just have been easier to
just…file another petition?
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Another
mortgage case…
This
case is full of contract terms like “accord and satisfaction” and
“consideration.” Any law student reading
this just shuddered in fear.
Basically,
Appellant made partial payments in 2009 and stopped making payments in 2010,
and Appellee Bank foreclosed for an amount over $100,000 in 2012. Appellant tried to argue that
the payments in
2009-2010 were made according to a second mortgage agreement and were accepted
by Appellee Bank as full satisfaction of the mortgage. The Trial Court said “no.” The
Court affirmed.
There’s
a bit of an interesting bit in here that you can only have “consideration”
which is a required part of a contract, for partial payments on a mortgage IF
those payments are being made over the threat of declaring bankruptcy. Bankruptcy was never an
issue in this case.
Comments: This
decision is only 9 pages and I understand
basically none of it…
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Appellant
Edward Meifert, III appealed the Trial Court’s decision after a trial on a
complaint and counterclaim for divorce. In
the judgment, the trial court granted the parties a divorce, awarded separate
property and divided marital property. The judgment also awarded appellant spousal
support in the amount of $400 per month for a period of 120 months, subject to
earlier termination on stated conditions.
These
two were married in 1978 and separated in August 2012. The parties have three children who are
now
adults. Both parties testified that they
are incompatible and requested termination of the marriage.
Appellant
raised the following arguments on appeal:
1) The
trial court abused its discretion in awarding spousal support to the
plaintiff-appellee.
2) The
trial court improperly imputed income to the defendant-appellant or failed in
its calculation of earning abilities of the parties.
3) The
trial court improperly computed the division of marital property.
4) The
findings and decision of the court are against the manifest weight of the
evidence.
Appellant
tried to claim that his income was $20,462 in 2011, $16,000 in 2010, and $9,936
in 2009 and that all the income was derived from his construction work. The Trial Court found
that at least $34,000
in income in 2010 had gone unreported based on Appellee’s testimony and
evidence. Appellant kept no business
records and claimed self-employment.
The
Court found no abuse of discretion in the Trial Court’s determination of
spousal support.
The
Court also found no abuse of discretion in the Trial Court’s determination of
the asset split and that the final judgment was not against the manifest weight
of the evidence. The Trial Court was
affirmed.
Comments: I
basically
stay out of Domestic Relations Court because of divorces like this…or in
general…
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Appellant
Walter D. Rodela and Appellee divorced in 1995.
At the time, the Trial Court awarded Appellee $12,500 plus growth out of
Appellant’s retirement package.
Appellant
retired and gave Appellee $11,656.25 from the fund, which represented the
amount ordered minus taxes and the growth.
Appellant filed a motion to show cause in the Trial Court.
At a
hearing, William Kimmelman, an expert in the division of pension assets in
divorce cases, testified that he did not have the statements from S&P 500
Index to approximate the actual amount of growth in the fund, but based on his
experience, a return rate between four to six percent was appropriate. Kimmelman admitted that
he had not seen an
investment portfolio for any of the years between 1995 and 2010. Also, in 1995, the Ohio Public
Employees
Deferred Compensation Program was not actually able to segregate funds, despite
the divorce decree’s order to do so.
Appellant
was held in contempt for failure to follow the divorce decree by a
magistrate. However, the Trial Court
modified the magistrate’s order finding Appellant in contempt, but upheld the
magistrate’s finding that Appellant had not paid the correct share of the
fund.
Appellant
asserted the following assignment of error:
The
lump sum award is not supported by competent, credible evidence.
Can
you see this one coming? Maybe? Guess what?
You have to actually know what you’re talking about when you testify to
something…who knew?
The
Court reversed the Trial Court’s finding and remanded for a new hearing on the
issue of what the growth in the fund actually was.
Comments: “Ya know, I
haven’t looked at a lick of evidence to
support my contentions, but X is normal, so it’s clearly got to be X.” …yeah, that doesn’t
work…
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John T. Hayes
v. Angeline Kelly – L-14-
1153
Appellant
Angeline Kelly appealed the judgment from the Trial Court, granting Forcible
Entry and Detainer to Appellant.
FOR
THE NON-LAWYER: “Forcible Entry and Detainer” is basically an eviction and
reclaiming of your property.
Appellant
had a problem paying rent on time, but the landlord accepted payments late all
of the time. Finally, the final straw
had been dropped and Appellee refused to accept another late payment and
demanded Appellant move out in 30 days.
Appellant filed for bankruptcy in the Federal Court.
So
there’s this thing in the US Code that basically automatically stays any
eviction proceeding upon the filing of bankruptcy, unless a judgment against
the debtor is obtained prior to the bankruptcy being filed. You can petition for the Federal
Court to
remove the stay. That did not happen
here.
The
Toledo Municipal Court denied Appellant’s request to stay the case due to the
filing of Bankruptcy and gave NO reason for having done so.
The
Court said “Yeah…you can’t do that,” and reversed the Trial Court.
Comments: …Appellant
was pro se…PRO SE VICTORY! Woohoo!
Always like knocking the TMC around a bit for things like this…way to go
Ms. Kelly.
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State v.
Harder – OT-14-005
Appellant
Frederick Harder appealed his sentence after pleading guilty to four counts of
Rape, felonies of the first degree, and receiving a sentence of 40 years.
Appellant
was originally indicted with 37 counts of rape and 36 counts of sexual battery
(and no, there are no typos in those numbers).
That was a 2012 indictment. More
charges were added in a 2013 indictment.
Appellant
pled to the four counts and in exchange everything else was dismissed and the
State agreed to recommend a sentence of no more than 30 years. The Trial Court did not follow
the
recommendation and gave Appellant the max it could, 40 years.
Appellant
argued the following assignments of error:
1) The
appellant was not afforded effective assistance of counsel as guaranteed by the
Sixth and Fourteenth Amendments to the Constitution of the United States.
2) The
appellant did not voluntarily and knowingly enter guilty pleas relative to
Counts I, II, IV and VI given the plea negotiations agreed upon between the
states [sic] and appellant ensured appellant a thirty-year prison sentence
rather than the forty-year term imposed by the sentencing court.
3) The
appellant’s sentence should be vacated based upon the trial court’s failure to
comply with R.C. 2929.11 and R.C. 2929.12.
Sentencing
appeals are hard to win. Especially when
your client tells the Trial Court “yes, I understand that this Court does not
have to abide by the recommendation the State gives it and I understand the max
sentence I am facing.” That happened in
this case.
Finding
no evidence on the record to indicate Ineffective Assistance of Counsel and
finding that the Trial Court did properly consider R.C. §2929.11 and R.C.
§2929.12, the Court affirmed Appellant’s sentence.
Comments: Sentencing
appeals…so hard to win…I’d say impossible
in all but the most extreme of circumstances.
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State v.
Holloway – WD-13-077; WD-13-
078
Appellant
Christopher Holloway appeals his sentence of 36 months after pleading guilty to
possession of cocaine and attempted possession of heroin.
Appellant
raised the following assignment of error on appeal:
1) The
trial court erred to the prejudice of appellant by not making the required
judicial findings before imposing consecutive sentences.
So, in
order for a Trial Court to make sentences consecutive to one another, it must
make certain findings. Some of those
findings include:
“…the
consecutive service is necessary to protect the public from future crime or to
punish the offender and that consecutive sentences are not disproportionate to
the seriousness of the offender’s conduct and to the danger the offender poses
to the public…” (R.C. §2929.14(C))
The
Court, try as it might, attempted to construe what the Trial Court stated on
the record as findings under R.C. §2929.14(C).
However, the Trial Court made absolutely no attempt at finding that
consecutive sentences was not disproportionate to the seriousness of
Appellant’s conduct. Without that, the
Court was forced to reverse Appellant’s sentence and remand the case for a
resentencing.
Comments: …this is
rather ironic considering my last
comment. See what I mean about extreme
cases? The Trial Court completely missed
a mandated finding for consecutive sentences.
Can’t do that…
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Appellant
Douglas Irvin, Jr. appealed his conviction of Perjury after jury trial. Yes…a jury trial on
Perjury…
The
case arose out of testimony that occurred at the Wood County Domestic Relations
Court. Appellant was married to Melissa
Irvin in 2007. They divorced in
2011. In 2013, Ms. Irvin reported to
police that Appellant had touched the bare breasts of her older daughter. During an
investigation, Appellant took two
polygraph tests. The first one Appellant
could not complete due to being sick, the second he failed. This was shown on video as, directly
after
Appellant took the polygraph, the Ohio State Trooper advised Appellant that he
failed the test.
Ms.
Irvin filed an emergency motion to terminate Appellant’s visitation with their
daughter. Appellant was put under oath
and testified “This whole situation goes back to falsehood. I’ve been through
the lie detector twice now, passed both times.”
The magistrate denied Ms. Irvin’s motion. This is the statement the perjury is based
on.
Appellant
raised the following assignments of error:
1) The
trial court erred by failing to grant defendant/appellant’s motion for
acquittal under Rule 29 of the Ohio Rules of Criminal Procedure.
2) The
trial court erred by refusing to permit the appellant to identify and confront
his accuser.
3) The
trial court’s sentence of appellant to a near maximum sentence of thirty months
was contrary to law and further constituted an abuse of discretion in failing
to properly consider and apply the sentencing guidelines set forth in Ohio
Revised Code, Sections 2929.11 and 2929.12.
This
case really falls on the first assignment of error. The third is a sentencing argument that goes
nowhere, and the second one doesn’t really make much sense. It appears that Appellant argued
that he was
not allowed to ask his ex-wife if she brought the perjury charges in order to
prove that it was just a method of getting him away from his child, however,
the Trial Court proceedings are recorded by a Court Reporter, and he was
confronted with the statement he made.
At no point did Appellant argue he did not make the statement.
This
case really turned on the elements of perjury.
Perjury is: “No person, in any official proceeding, shall knowingly make
a false statement under oath or affirmation, or knowingly swear or affirm the
truth of a false statement previously made, when either statement is material.”
R.C. §2921.11(A)
Appellant
argued that, from his point of view, the law enforcement officers were trying
to coerce a confession out of him and therefore he, in his mind, must have
passed the polygraph test. Appellant’s
argument was that, due to his perceived deception of the officers, he did not
believe he had failed the test. However,
the Court found that, looking at the evidence in a light most favorable to the
State, as it is required to do, the Court found that a reasonable trier of fact
could have found that Appellant knowingly made a false statement of fact beyond
a reasonable doubt.
Appellant
also argued that the statement was not material as it was made at a hearing
that’s primary purpose was to appoint a guardian ad litem post-divorce. Also, since polygraphs
are inadmissible
without a stipulation, the results don’t matter.
The
Court, however, found that the statement had the potential to bolster Appellant’s
credibility at the hearing and influence the magistrate. Under a light most favorable to the
State,
the Court found that the statement was material and affirmed Appellant’s
conviction.
Comments: I’m rather
disappointed in something this petty being
prosecuted, but then I see it’s Wood County and I’m not surprised. I’m also rather disappointed
in the
outcome. I think the Court went the
wrong way with this, but that’s just my opinion. I have no idea how an officer can deduce the
results of a polygraph considering I’ve sat through some of them before and
they normally take weeks to come back with a result, because any reputable test
giver sends the test to a blind examiner to verify the results. Having the officer just say “oh,
you failed”
immediately after just screams “police tactic” to me.
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Man…I
feel like I just ran a marathon…
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