Friday First District Roundup 8-7-20

Each Friday, we highlight decisions of the First District Court of Appeals in the past week. For question about these cases, contact Vanessa Seeger.

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State of Ohio v. Lakysha Sager
Case #C190417

Quote from Judgment Entry:

Defendant-appellant Lakysha Sager appeals the decision of the Hamilton County Municipal Court denying her third application to seal records of her convictions for interference with custody under R.C. 2919.13. For the reasons that follow, we affirm the trial court’s judgments.

In 2013, Sager was charged with two counts of interference with custody after she took her then nine- and 11-year-old daughters from a school-bus stop without the knowledge or permission of their father, the girls’ residential parent. She was convicted of both counts following a jury trial.

In 2016, Sager filed an application to seal the records of her convictions, which the trial court denied. Sager appealed, and we affirmed the trial court’s judgment. See State v. Sager, 1st Dist. Hamilton No. C-160664 (Nov. 11, 2017).

B&J Electrical Company, Inc. v. City of Cincinnati
Case #C190368

Quote from Judge Bergeron's Opinion:

A corporation comes before us claiming that a municipal ordinance infringes on the fundamental right to marry. That may sound odd because, the last we checked, a corporation can’t marry. In actuality, however, it seeks to vindicate the rights of its owner, who is already married (and not a party to this appeal). The owner’s marriage to a wealthy spouse put him over the income threshold for a small business certification, spawning this constitutional claim. But try as he might to squeeze this into a constitutional bucket, the owner’s efforts (really, those of his company) fall well short. For the reasons explained below, we affirm the trial court’s rejection of these claims

State of Ohio v. Keith Lockhart
Case #C190509

Quote from Judgment Entry:

In July 2019, defendant-appellant Keith Lockhart pleaded guilty to two counts of breaking and entering under R.C. 2911.13. In turn, the trial court imposed a 12-month sentence on each charge, running the sentences consecutively for a total of 24 months. Mr. Lockhart now appeals, raising a single assignment of error, contending the trial court failed to render the necessary findings under R.C. 2929.14(C) and failed to consider the sentencing purposes and factors set forth in R.C. 2929.11 and 2929.12.

As the Ohio Supreme Court recently clarified in State v. Gwynne, 158 Ohio St.3d 279, 2019-Ohio-4761, 141 N.E.3d 169, R.C. 2929.11 and 2929.12 only apply when reviewing individual sentences, while R.C. 2953.08(G)(2) remains the “exclusive means of appellate review of consecutive sentences.” Id. at ¶ 16-17; State v. Chandler, 1st Dist. Hamilton No. C-190153, 2020-Ohio-164, ¶ 6. Pursuant to R.C. 2953.08(G)(2), we may modify or vacate a defendant’s sentence where we “clearly and convincingly” find that the record does not support the mandatory sentencing findings or that the sentence is otherwise contrary to law. See State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 1.

State of Ohio v. Douglas Draud
Case #C190444

Quote from Judgment Entry:

In June 2019 defendant-appellant Douglas Draud pleaded guilty to one count of breaking and entering under R.C. 2911.13(A) and four counts of burglary pursuant to R.C. 2911.12(A). The trial court then imposed 24-month sentences for each of the burglary convictions and a 12-month sentence on the breaking and entering. The 12- month sentence and two of the 24-month sentences were to run consecutively, with the two remaining 24-month sentences running concurrently, resulting in an aggregate fiveyear prison term.1 Mr. Draud now appeals, raising a single assignment of error, challenging the trial court’s imposition of the consecutive sentences. Mr. Draud specifically contends that the record does not support the trial court’s imposition of consecutive sentences.

In re: A.B., a minor child
Case #C190329

Quote from Judge Crouse's Opinion:

A.B. appeals from judgments of the Hamilton County Juvenile Court that adjudicated her delinquent for violating the rules of probation and engaging in conduct which, if it had been engaged in by an adult, would have constituted two charges of grand theft. For the reasons set forth below, we dismiss these appeals.

In the case numbered 18-0841, A.B. admitted to violating the rules of her probation by leaving Hamilton County. In the cases numbered 19-0817 and 19- 1119, A.B. admitted to two counts of grand theft in Warren County. The Warren County cases were transferred to Hamilton County for disposition.

Julio F. Perez-Hernandez, Victor Espinoza, La Michoancana Ice Cream and Sandwich Shop, LLC v. La Michoancana Paleteria, LLC, Esteban Nolasco Gaspar
Case #C190325

Quote from Judgment Entry:

This appeal arises after a bench trial on a civil complaint for damages related to the separate business arrangements that plaintiff-appellant Julio F. Perez-Hernandez, and plaintiffs-appellants Victor Espinoza and his Mexican ice cream supply company, La Michoacana Ice Cream and Sandwich Shop, LLC, (“Espinoza”) allegedly had with defendants-appellees Esteban Nolasco Gaspar and his retail ice cream company, Michoacana Paleteria, LLC, (“Gaspar”). The trial court found in favor of Gaspar on all claims.

Kyriakos Georgantonis, Diamanto Georgantonis, Eleni Georgantonis, Panagiotis Georgantonis, Yianni Georgantonis v. City of Reading, Ohio, Hubbell, Inc., Hubbell Lenoir City, Inc., Shell Oil Company, Strongwell Corporation, Lone Star Industries, Inc., Richards Electric Supply Co., Inc., John or Jane Does
Case #C190615

Quote from Judge Myers' Opinion:

Kyriakos Georgantonis, Diamanto Georgantonis, Eleni Georgantonis, Panagiotis Georgantonis, and Yianni Georgantonis (“the plaintiffs”) appeal the decision of the trial court granting a Civ.R. 12(C) motion for judgment on the pleadings in a personal-injury case in favor of defendant-appellee, the city of Reading, Ohio, based on governmental immunity.

On October 4, 2016, Kyriakos Georgantonis, an employee of the Pastrimas Painting Company, was painting the side of a building on West Benson Street in Reading, Ohio. Georgantonis was working from the platform of a scissor lift raised to a height of approximately 20 feet, which he had moved into place on the sidewalk in front of the building.

When Georgantonis parked the scissor lift, one of the tires of the scissor lift was positioned on top of the cover of an electric service box that had been installed by the city. As Georgantonis was working, the cover of the service box fractured, causing the scissor lift to topple over and crash onto the sidewalk and causing Georgantonis to fall to the sidewalk and sustain injuries.

The Literary Club v. Jeffrey A. McClain, Tax Commissioner of Ohio
Case #C190479

Quote from Judge Crouse's Opinion:

The Literary Club (“Club”) is a private organization whose primary function, as described in its constitution, is to “provide a forum for its members to read original papers, written solely by them, to an audience limited to the members of the Club and their guests.” The Club owns a historic house located in downtown Cincinnati, Ohio.

The Club applied for a real property tax exemption and remission pursuant to R.C. 5709.12 and 5709.121. Property belonging to a charitable or educational institution qualifies for tax exemption if it meets certain conditions listed in R.C. 5709.121(A). Property belonging to any institution qualifies for tax exemption under R.C. 5709.12 if it is used exclusively for charitable purposes.

The Ohio Tax Commissioner (“Commissioner”) denied the application, finding that “there is no evidence of charitable activities at the subject property” and “that a portion of the subject property is used as a residence.” The Club appealed to the Ohio Board of Tax Appeals (“BTA”), which, after an evidentiary hearing, affirmed the Commissioner’s decision.

The Club has appealed, arguing in three assignments of error that (1) the BTA erred in holding that the Club failed to prove that it was entitled to a real property tax exemption, (2) the BTA incorrectly interpreted and applied R.C. 5709.12 and 5709.121, and (3) the BTA’s decision denied the Club equal protection under the law.

For the reasons discussed below, we overrule the Club’s first and second assignments of error, find that we lack jurisdiction to consider the merits of its third assignment of error, and affirm the judgment of the BTA.

State of Ohio v. Rontarius Seabon
Case #C190460

Quote from Judgment Entry:

Defendant-appellant Rontarius Seabon was originally charged with one count of trafficking in heroin, three counts of aggravated trafficking in drugs, one count of aggravated possession of drugs, and one count of having weapons while under a disability. Under the terms of a plea agreement, he pleaded guilty to reduced charges of one count of trafficking in heroin under former R.C. 2925.03(A) and one count of aggravated trafficking in drugs under former R.C. 2925.03(A)(1), both third-degree felonies. The remaining counts were dismissed. The trial court sentenced Seabon to 36 months of imprisonment on each of the two counts, to be served consecutively. This appeal followed.

Bryan White, Cool Country Corporation, Tupper Plains Investments, LLC v. Aaron Pitman, API Domain Capital, LLC, RA Domain Capital, LLC, HP Insurance Group, Inc., Autoinsurancenow, LLC,, LLC, Cool Country Group, LLC, Ryan Goldschmidt
Case #C190441

Quote from Judge Myers' Opinion:

Plaintiffs-appellants Bryan White, Cool Country Corporation, and Tupper Plains Investments, LLC, appeal from the trial court’s entry granting the Civ.R. 12(B)(6) motion to dismiss filed by defendants-appellees Aaron Pitman, API Domain Capital, LLC, HP Insurance Group, LLC, AutoinsuranceNow, LLC, Cool Country Group, LLC,, LLC, Ryan Goldschmidt, and RA Domain Capital, LLC.

We hold that the trial court properly dismissed the plaintiffs’ asserted claim of piercing the corporate veil. But because the trial court failed to accept all allegations in the plaintiffs’ complaint as true when finding that previously executed releases barred all claims in the complaint, and because it erred in determining that the plaintiffs failed to plead their fraud claim with particularity, we hold that the trial court erred in granting the motion to dismiss with respect to the remaining claims, and we reverse its judgment in part.

Darla Fiedeley v. Finneytown Local School District Board of Education
Case #C190366

Quote from Judge Myers' Opinion:

Finneytown Local School District Board of Education (“the Board”) appeals the judgment of the Hamilton County Court of Common Pleas reversing the decision of the Board to terminate the employment of Darla Fiedeldey and awarding damages. Because under our limited scope of review, we cannot say that the trial court abused its discretion in reversing the Board’s decision, and because the court did not err in its award of back pay, we affirm the trial court’s judgment.

In re: S.N.
Case #C190152

Quote from Judge Winkler's Opinion:

In these appeals, S.N. challenges two judgments of the Hamilton County Juvenile Court adjudicating him delinquent and committing him to the custody of the Department of Youth Services (“DYS”). For the reasons that follow, we hold that the juvenile court erred in accepting S.N.’s admission to violating probation in S.N.’s delinquency case related to child endangering. As to S.N.’s delinquency case related to rape, we overrule S.N.’s assignments of error and affirm the judgment of the juvenile court.

State of Ohio v. Joel Wallace
Case #C190043

Quote from Judge Crouse's Opinion:

On February 26, 1997, defendant-appellant Joel Wallace pleaded guilty to aggravated burglary and rape. He was sentenced on March 26, 1997, to an aggregate sentence of 14 years in prison. In a sentencing addendum entered on March 27, 1997, he was adjudicated a sexual predator under former R.C. Chapter 2950, Ohio’s version of Megan’s Law. As a sexual predator, Wallace is required to register every 90 days for life. He was notified of his registration duties, but he refused to sign the notification form. His counsel did sign the form. This court overruled Wallace’s motion to file a delayed appeal on November 30, 1998, and again on April 2, 2004.

The trial court sua sponte docketed an entry on June 1, 2010, which ordered Wallace’s return for resentencing. On July 15, 2010, the trial court held a new sentencing hearing to correctly notify Wallace of postrelease control.1 At the new sentencing hearing, the trial court told Wallace that the resentencing did not affect his sexual-predator classification and that he “would still be a sexual predator for the registration requirements.” The new sentencing entry, which was entered on July 22, 2010, imposed the original sentence, credited Wallace with time served, and notified him of postrelease control. It did not include any mention of the 1997 sexual-predator classification. This court affirmed that judgment on May 25, 2011.

On December 12, 2018, Wallace filed a motion entitled “Rule 32 ineffective assistance of counsel,” in which he stated that a failing-to-register charge against him had been dismissed on November 1. Apparently, that filing prompted 1 Under the law at the time of the July 15, 2010 hearing, the trial court was required to hold a full resentencing hearing to correct postrelease-control notification. See State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250, 868 N.E.2d 961 (where the court fails to notify the offender of postrelease control, the sentence is void, the sentence must be vacated, and the cause must be remanded for a new sentencing hearing), overruled, State v. Harper, Slip Opinion No. 2020- Ohio-2913 (holding that where the court had jurisdiction to act, any error in the imposition of postrelease control renders the sentence voidable, not void). the trial court in this case to issue on January 8, 2019, a nunc pro tunc order stating that Wallace had been adjudicated a sexual predator on March 27, 1997. Although the nunc pro tunc order is not clear, it appears that the court was entering the order nunc pro tunc to its July 22, 2010 resentencing order, which did not include any mention of Wallace’s 1997 sexual-predator classification. Wallace has appealed from the nunc pro tunc order.

Wallace’s sole assignment of error states, “The doctrine of laches barred the trial court from issuing a nunc pro tunc entry on January 8, 2019[,] to indicate that Wallace was adjudicated a sexual predator.”