LINNIE EDWARDS v. CHRISTOPHER M. KELLEY
No. 110116
COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
August 26, 2021
2021-Ohio-2933
JOURNAL ENTRY AND OPINION
JUDGMENT: REVERSED AND REMANDED
RELEASED AND JOURNALIZED: August 26, 2021
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-20-935668
Appearances:
Richard E. Hackerd, for appellant.
Reminger Co., L.P.A., Andrew J. Dorman, and Aaren R. Host, for appellee.
{¶ 1} Linnie Edwards appeals from a trial court decision granting judgment on the pleadings under
{¶ 2} In 2018, Edwards was sentenced to serve a one-year community control sanction for a felony of the fifth degree theft offense. State v. Edwards, 8th Dist. Cuyahoga No. 109104, 2020-Ohio-927, ¶ 17. While under supervision, Edwards committed a petty theft offense in Franklin County that culminated with a charge for a misdemeanor disorderly conduct. Id. This case presents the ultimate question of whether Kelley, who represented Edwards in her community control violation hearing, should have objected to a 12-month sentence based on
{¶ 3} Following the favorable decision, Edwards filed a legal malpractice action against Kelley claiming that an attorney-client relationship was created when the trial court appointed Kelley to represent her, Kelley breached that duty when he failed to know the relevant sentencing law and failed object to the trial court‘s sentence, and as a result of Kelley‘s breach, the sentence exceeded the maximum by 76 days. Krahn v. Kinney, 43 Ohio St.3d 103, 105, 538 N.E.2d 1058 (1989).
{¶ 4} In the proceedings below, Kelley focused on the technical violation aspect of the violation sentencing statute and claims that Edwards‘s conduct did not constitute a technical violation of her community control supervision, and therefore, he had no obligation to object to the sentence. According to Kelley, the misdemeanor offense was not the only violation considered at the hearing — a matter that could be determined from the transcript of that proceeding that is not part of the record.1
{¶ 5} As part of this appeal, Edwards claims that the Edwards panel concluded that her conduct constituted a nontechnical violation of the conditions of her community control. Id. at ¶ 17. The Edwards panel never reached that conclusion, however, expressly stating that “we need not consider whether appellant‘s failure to appear for the April 3, 2019 probation violation hearing constitutes a ‘technical’ violation of community control” because the offense Edwards committed while on community control was a misdemeanor. Id. at ¶ 18, citing
[i]f the prison term is imposed for any technical violation of the conditions of a community control sanction imposed for a felony of the fifth degree or for any violation of law committed while under a community control sanction imposed for such a felony that consists of a new criminal offense and that is not a felony, the prison term shall not exceed ninety days.2
Thus, the statute then provided two possible avenues for the offender to limit the sentencing exposure for community control
{¶ 6} According to Kelley, Edwards misrepresented the basis of the community control violation in Edwards, and the violation was actually based on Edwards‘s systemically failing to abide by the terms of the community control sanction, and such conduct was not a technical violation triggering the 90-day sentencing limitation. In answering the malpractice complaint, Kelley attached several documents to his answer and counterclaim, including the docket and several journal entries from Edwards‘s criminal case. The trial court considered the materials, over Edwards‘s objection, and concluded that
The plaintiff‘s claim before the court is very narrow and can be decided as a matter of law on the pleadings and the record of the underlying criminal case. Defendant Kelley represented plaintiff Edwards for a probation violation after the plaintiff Edwards failed to report to probation for four months, failed to appear for a probation violation hearing, resulting in the trial court issuing a capias, and where plaintiff was convicted of a subsequent crime. The court finds that the totality of the circumstances that led to plaintiff [Edwards‘s] sentence was non-technical.
(Emphasis added.) Thus, the trial court concluded, as a matter of law, that Kelley was entitled to a judgment in his favor after construing the evidence presented in the answer. The transcript from the community control violation hearing is not part of this record and, therefore, was not considered by the trial court.
{¶ 7}
{¶ 8} ”
{¶ 9} The trial court, in this case, considered the evidence of Edwards‘s criminal proceedings because Kelley attached the court records to his answer, including the docket in the underlying criminal case; the August 6, 2019 journal entry sentencing appellant to 12 months; the March 11, 2019 journal entry setting appellant‘s first probation violation hearing; and the March 11, 2019 extension of appellant‘s probation. Attaching court documents to an answer, however, does not circumvent the limitation to solely reviewing the pleadings. The term “pleadings” as contemplated under
{¶ 10} Further, a court cannot take judicial notice of evidence that cannot be considered under
{¶ 11} At one time, the type of documents that could be attached to pleadings and considered under
{¶ 13} Further, the transcript of the community control violation hearing is necessary to determining the underlying conduct that constituted the violation leading to the imposed sentence. The question is not what the trial court could have considered as a basis to find Edwards in violation of the terms of her community control sanction, but what the trial court considered to be the violation at the hearing. The nondescript sentencing entry related to the violation hearing simply provided: the “court finds defendant, Linnie Edwards, to be in violation of community control sanctions. Defendant‘s community control sanction(s) in this case is/are terminated.” Since the transcript is not part of our appellate record, we must presume that the trial court did not consider the transcript in rendering its conclusion as to the basis for the violation. In light of the procedural posture of the proceedings below, arising from a
{¶ 14} The decision granting the judgment on the pleadings in favor of Kelley is reversed, and the matter remanded for further proceedings.
It is ordered that appellant recover from appellee the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
SEAN C. GALLAGHER, JUDGE
EMANUELLA D. GROVES, J., CONCURS;
MARY J. BOYLE, A.J., DISSENTS WITH SEPARATE OPINION
MARY J. BOYLE, A.J., DISSENTING:
{¶ 15} I respectfully dissent. Although I generally agree with the law set forth by the majority opinion, it is my view that this case presents a question of law, not fact, and thus, could be resolved by a
{¶ 16} Motions for judgment on the pleadings are governed by
{¶ 17} The standards for
{¶ 18} In State ex rel. Crabtree v. Franklin Cty. Bd. of Health, 77 Ohio St.3d 247, 673 N.E.2d 1281 (1997), the Ohio Supreme Court stated that “[m]aterial incorporated in a complaint may be considered part of the complaint for purposes of determining a
{¶ 19} It is therefore my view that the majority is interpreting Husted too narrowly. The attachment to the complaint of writ of mandamus that was at issue in Husted was an affidavit of the director of the Muskingum Board. Unlike the court records that were attached to Kelley‘s pleading in this case, the director‘s affidavit in Husted contained factual allegations that were not appropriate for judgment on the pleadings.
{¶ 20} The attachments in this case establish that the trial court in Edwards‘s criminal case issued a capias on April 3, 2019, when she failed to appear for a probation violation hearing. Edwards was not back in custody until approximately three months later. These documents establish that Edwards failed to report from at least sometime before March 11, 2019, when the parole violation hearing was scheduled, until she was apprehended in July 2019. This was sufficient to establish that Edwards‘s parole violation was nontechnical in nature pursuant to State v. Neville, 2019-Ohio-151, 128 N.E.3d 937 (8th Dist.), and State v. Nelson, 162 Ohio St.3d 338, 2020-Ohio-3690, 165 N.E.3d 1110. The fact that in State v. Edwards, 8th Dist. Cuyahoga No. 109104, 2020-Ohio-927, this court concluded that Edwards‘s misdemeanor conviction was a nontechnical violation is of no consequence here because we specifically stated in Edwards that our decision was limited to whether Kelley‘s misdemeanor conviction was a technical violation. Id. at ¶ 18. In this case, however, we are addressing a civil case of legal malpractice.
{¶ 21} It is also my view that for purposes of this case, it is irrelevant what the trial court considered to be the violation at the hearing. The attached judgment entries establish that Edwards absconded for at least five months. Thus, for purposes of construing all material allegations in Edwards‘s complaint and all reasonable inferences to be drawn therefrom in Edwards‘s favor, it is my view that she can prove no set of facts that would entitle her to relief
{¶ 22} Courts have also held that “[w]hile generally limited to the allegations stated in a complaint, a trial court may take judicial notice of ‘appropriate matters’ in considering a
{¶ 23} It is axiomatic that courts may take judicial notice of their own docket. Indus. Risk Insurers v. Lorenz Equip. Co., 69 Ohio St.3d 576, 580, 635 N.E.2d 14 (1994). However, a trial court cannot take judicial notice of court proceedings in another case. Campbell v. Ohio Adult Parole Auth., 10th Dist. Franklin No. 97APE05-616, 1997 Ohio App. LEXIS 4829, 4 (Oct. 28, 1997). Similarly, “a trial court may not take judicial notice of prior proceedings in the court even if the same parties and subject matter are involved.” First Michigan Bank & Trust Co. v. P. & S. Bldg., 4th Dist. Meigs No. 413, 1989 Ohio App. LEXIS 527, 8-9 (Feb. 16, 1989).
“The rationale for the rule that a trial court cannot take judicial notice of proceedings in a separate action is that the appellate court cannot review the propriety of the trial court‘s reliance on such prior proceedings because that record is not before the appellate court.” Campbell at 5, citing The Deli Table, Inc. v. Great Lakes Mall, 11th Dist. Lake No. 95-L-012, 1996 Ohio App. LEXIS 5930 (Dec. 31, 1996).
{¶ 24} Here, however, this court, as the reviewing court, can review the propriety of the trial court‘s reliance on the prior proceedings because the attachments are before us and publicly available on the internet. Therefore, it is my view that, alternatively, the trial court in this case could have taken judicial notice of the docket in Edwards‘s criminal case to grant Kelley‘s motion for judgment on the pleadings.
{¶ 25} I would therefore affirm the trial court‘s decision to grant Kelley judgment on the pleadings.