2 Weeks of Roundups! First District Friday Roundups (11/18)

11/14/2022
Early Church of God in Christ, Inc. v. Richard L. Jackson, Joyce E. Raglin
C-220115
Quote from Judge Bergeron:
ECOGIC, a nonprofit corporation, operates two churches, both located in the greater Cincinnati area. The “Guide to Govern the Early Church of Christ” (“ECOGIC Guide”) governs all facets of ECOGIC’s operations, and its board of elders presides over matters of governance. When the events at issue arose, the elders included Senior Bishop Rufus L. Bryant, Junior Bishop John T. McCauley, and Mr. Jackson (in addition to several other congregants). Ms. Raglin served as a secretary
and a pastor for ECOGIC.
In October 2021, a number of individuals within ECOGIC’s congregation received a letter that purported to be authored by then-Senior Bishop Bryant. The letter ostensibly followed a meeting at which he allegedly demoted Mr. McCauley from his role as junior bishop, while simultaneously elevating Mr. Jackson to the role of assistant bishop. The letter caused quite a stir among the congregation. Some members questioned its authenticity, given that Senior Bishop Bryant was in
failing health, and in fact passed away shortly thereafter in November. Moreover, according to the ECOGIC Guide, the then-senior bishop lacked the authority to demote Mr. McCauley and elevate Mr. Jackson without proper approval by the board of elders or the church’s general assembly (neither of which, as we understand it, had occurred).

            The trial court erred in sua sponte dismissing the second and third counts of plaintiff’s complaint pursuant to the ecclesiastical abstention doctrine, because the complaint alleged claims for breach of fiduciary duty and an accounting and inspection of records that can be resolved by neutral principles of law.
            The trial court properly dismissed plaintiff’s first count in its complaint for trespass because the issue was ecclesiastical. 
JUDGMENT:  AFFIRMED IN PART, REVERSED IN PART, AND CAUSE REMANDED.

11/14/2022
In re: Ndubuisi Ezeh
C- 220081, C-220084
Quote from Judge Bock:
Ezeh underwent a competency evaluation in a criminal matter
In October 2021, Ezeh was charged with four counts of aggravated menacing and one count of criminal trespassing in the case numbered 21CRB-18033 (A)-(E).2 The trial court found that Ezeh was incompetent to stand trial and ordered Ezeh to Summit to attempt to restore him to competency.
In January 2022, the trial court determined that Ezeh would not be restored to competency and referred Ezeh to the probate court. Later in January 2022, Dr. Vanessa Doyle filed an affidavit of mental illness and an application for emergency admission under R.C. 5122.01 on behalf of Summit in the probate court, averring that Ezeh had been found nonrestorable in the cases numbered 21CRB18033 (A)-(E) and that Ezeh would not take his medication voluntarily.

            Respondent’s appeal was not moot because respondent continued to be subject to court-ordered treatment.
The trial court’s judgment finding respondent a mentally-ill person subject to court-ordered treatment under R.C. 5122.01 was supported by competent, credible evidence where the state presented clear and convincing evidence that respondent had a substantial thought-and-mood disorder, which impaired respondent’s functioning, and was at substantial risk of physical harm to others.
JUDGMENT:  AFFIRMED

11/14/2022
Alexander Mark Moksin, Simon Moksin, Ownerland Realty, Inc. v. Conversion Properties LLC, Mayfair of Montgomery Condominium, LLC, Charles K. Schulman, Melvin R. Rubin, Marilyn Shafron, John Doe
C-220074
Quote from Judge Winkler:
On appeal, plaintiff-appellant Ownerland Realty, Inc., advances a single assignment of error in which it challenges the entry of summary judgment for
defendants-appellees Conversion Properties L.L.C., Mayfair of Montgomery Condominium, L.L.C., Charles K. Schulman, Melvin R. Rubin, and Marilyn Shafron on Ownerland Realty’s complaint. Ownerland Realty seeks recovery for breach of a written contract against two corporations and various individuals who are allegedly liable as shareholders. The record demonstrates that when granting summary judgment to the defendants-appellees, the trial court applied a six-year statute of limitations when an eight-year statute of limitations governs the breach-of-contract claim. Consequently, we reverse the trial court’s judgment, and remand the cause for further proceedings.
The dispute involves whether Ownerland Realty can recover for allegedly unpaid commissions related to the leasing and sale of “apartment condominiums.” The lawsuit, filed in November 2020, initially involved two additional plaintiffs, but the trial court granted summary judgment to the
defendants-appellees on those plaintiffs’ claims due to lack of standing, and those plaintiffs have not appealed the judgment.

11/14/2022
Alexander Mark Moksin, Simon Moksin, Ownerland Realty, Inc. v. Conversion Properties LLC, Mayfair of Montgomery Condominium, LLC, Charles K. Schulman, Melvin R. Rubin, Marilyn Shafron, John Doe
C-220074
Quote from Judge Winkler:
On appeal, plaintiff-appellant Ownerland Realty, Inc., advances a single assignment of error in which it challenges the entry of summary judgment for
defendants-appellees Conversion Properties L.L.C., Mayfair of Montgomery Condominium, L.L.C., Charles K. Schulman, Melvin R. Rubin, and Marilyn Shafron on Ownerland Realty’s complaint. Ownerland Realty seeks recovery for breach of a written contract against two corporations and various individuals who are allegedly liable as shareholders. The record demonstrates that when granting summary judgment to the defendants-appellees, the trial court applied a six-year statute of limitations when an eight-year statute of limitations governs the breach-of-contract claim. Consequently, we reverse the trial court’s judgment, and remand the cause for further proceedings.
The dispute involves whether Ownerland Realty can recover for allegedly unpaid commissions related to the leasing and sale of “apartment condominiums.” The lawsuit, filed in November 2020, initially involved two additional plaintiffs, but the trial court granted summary judgment to the
defendants-appellees on those plaintiffs’ claims due to lack of standing, and those plaintiffs have not appealed the judgment.

             The trial court erred by granting summary judgment on the grounds that plaintiff’s claim for breach of a written contract was governed by the six-year statute of limitations found in R.C. 2305.07 because the eight-year statute of limitations of former R.C. 2305.06 applied.
JUDGMENT:   REVERSED AND CAUSE REMANDED

11/14/2022
Tiffany L. Veach v. Aaron J. Adams
C-220072
Quote from Judge Crouse:
The parties were divorced via a decree of divorce entered by the court on July 29, 2016. Five children—O.A., C.A., I.A., M.A., and L.A.—were born issue of the marriage.1 Plaintiff-appellee Tiffany L. Veach (“mother”) was designated the residential parent and legal custodian of the children and an order was issued for father to have parenting time. Mother filed a motion to modify or restrict father’s parenting time on August 28, 2020, asserting that father was recently terminated from his employment under allegations that were concerning. Father filed his own motion to modify parenting time on January 4, 2022, asserting that mother had “blocked” his parenting time on numerous occasions and requesting that the court order him more time with the children. Father filed an amended motion the following day with no relevant changes. A hearing was held on all motions on February 10, 2022.

The trial court did not abuse its discretion in ordering that no child would be forced to attend parenting time with father where the trial court found that such an order was in the best interest of the children and such determination was not unreasonable or arbitrary. 
The trial court did not err in ordering that it would not entertain any motion for contempt in the narrow circumstance where a child had “vehemently” protested attending parenting time as the court was empowered to determine the kind and character of conduct that would constitute contempt.   JUDGMENT:    AFFIRMED

11/14/2022
State of Ohio v. Antonio Montgomery
C-220063
Quote from Judge Myers:
On May 20, 2021, several Cincinnati police officers were dispatched to a home on Glenway Avenue in response to a report of domestic violence. When they arrived at the home, Leprecious Turner, Montgomery’s wife, told the officers that Montgomery had assaulted her earlier in the evening outside of a White Castle restaurant in Northside. While the officers were speaking to Turner, Montgomery arrived on the scene. After speaking to Montgomery, the officers suspected that he was under the influence of alcohol. Montgomery agreed to perform field-sobriety tests. Following his performance on those tests, Montgomery was placed under arrest and transported to Cincinnati Police Station District Three. At the station, he was read his Miranda rights and voluntarily submitted to a breath test and a urinalysis test.

Where defendant voluntarily arrived on the scene and approached the officers, was not handcuffed, was questioned on a sidewalk outside his home, and voluntarily answered officers’ questions, and where the officers did not engage in coercive tactics, intimidation, or threaten defendant, defendant was not subject to a custodial interrogation.
Where defendant was not subject to a custodial interrogation, Miranda warnings were not required and the trial court did not err in denying defendant’s motion to suppress.
JUDGMENT: AFFIRMED

11/14/2022
State of Ohio v. Tisaan Coleman
C-210600
Quote from Judge Crouse:
On September 15, 2021, Coleman was charged with aggravated menacing under R.C. 2903.21 for threatening his neighbor with a firearm. On September 30, 2021, a bench trial was held. At trial, Demetrius Peterson, Coleman’s neighbor, testified that he had been sitting outside of his apartment building with his daughter and her boyfriend. Peterson continued to sit outside for a few minutes after his daughter and her boyfriend went inside to get ready for work. He testified that when he went back inside the building, he saw Coleman standing in front of his daughter and her boyfriend pointing a gun at them. Peterson testified that, at this point, he walked up the stairs to his apartment on the third floor to call the police. Then, Coleman, “ran behind [him] up the steps” and while pointing a gun at him said, “no motherfucker, you can get some too.” Peterson then went inside his apartment and called the police. Peterson testified that Coleman’s sister came into the building after the incident had occurred to “get [Coleman] and take him away.”

The Defendant’s conviction for aggravated menacing under R.C. 2903.21 was supported by sufficient evidence and was not against the manifest weight of the evidence where the victim testified that defendant threatened him with a firearm, the responding officer testified that the victim appeared to be frightened when he arrived at the scene, and defendant’s testimony revealed a motive for the threat.
While the court erred in failing to impose court costs at the sentencing hearing, any error was harmless because, pursuant to State v. Fissel, 1st Dist. Hamilton No. C-210483, 2022-Ohio-1856, and R.C. 2947.23(C) defendant can file a motion in the trial court for a waiver of court costs at any time.
JUDGMENT:    AFFIRMED

11/14/2022
State of Ohio v. Ryan Bailey
C-210584
Quote from Judge Crouse:
On September 12, 2020, defendant-appellant Ryan Bailey was stopped by Cincinnati Police in the parking lot of a Cincinnati Metropolitan Housing Authority apartment complex in Cincinnati, Ohio. Officers searched his car and found marijuana and a firearm.
On September 17, 2020, Bailey was indicted on three counts: (1) receiving stolen property in violation of R.C. 2913.51(A); (2) carrying a concealed weapon in violation of R.C. 2923.12(A)(2); and (3) improperly handling a firearm in a motor vehicle in violation of R.C. 2923.16(B). Each charge is a fourth degree felony. On July 7, 2021, Bailey filed a motion to suppress statements he made admitting to the marijuana in the vehicle, and the other evidence found based on those statements.

The trial court erred by denying defendant’s motion to suppress a statement made by defendant about the possession of marijuana and derivative evidence found based on that statement, because defendant made the statement while subject to custodial interrogation without first being advised of his Miranda rights, where he was ordered out of his vehicle, handcuffed, patted down, surrounded by police officers, questioned about the contents of his vehicle, and told that a K‑9 unit would be walked around his car.
JUDGMENT: REVERSED AND CAUSE REMANDED

11/16/2022
State of Ohio v. Ndubuisi Ezeh
C-200429
The court sua sponte removes this case from the regular calendar and places it on the court’s accelerated calendar, 1st Dist. Loc.R. 11.1.1(A), and this judgment entry is not an opinion of the court. See Rep.Op.R. 3.1; App.R. 11.1(E); 1st Dist. Loc.R. 11.1.1.
Defendant-appellant’s appointed counsel has advised this court that, after a thorough review of the record, he can find nothing that would arguably support appellant’s appeal, and that the appeal is wholly frivolous. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); see also Freels v. Hills, 843 F.2d 958 (6th Cir.1988). Counsel, as required by Anders, has communicated this conclusion to appellant, and has offered appellant an opportunity to respond and to raise any issues. Counsel has also moved this court for permission to withdraw as counsel. See Anders at 744; see also 1st Dist. Loc.R. 16.2(C)(1) and 16.2(D)(2).

11/18/2022
State of Ohio v. Khalid Bryant
C-220144
Quote from Judge Bergeron:
Defendant-appellant Khalid Bryant offered to drive Janell Roberts, the mother of his daughter, home one night from her father’s house. After Mr. Bryant pulled off at a gas station, an argument between the two ensued. During the dispute, Mr. Bryant allegedly grabbed her chin, squeezed her cheeks with his hand, and later struck her across her right cheek. After this incident, Mr. Bryant was charged with first-degree misdemeanor domestic violence in violation of R.C. 2919.25. Following a bench trial, the court found him guilty. He now appeals, presenting a single assignment of error attacking the sufficiency of the evidence supporting his conviction and raising a manifest weight of the evidence challenge. After a thorough review of the record, however, we overrule his assignment of error and affirm the trial court’s judgment.

The trial court did not err in finding that defendant was a family member of his domestic violence victim: the victim’s testimony that she was the mother of defendant’s child, in the absence of any conflicting evidence, was sufficient to establish the family member requirement for first degree misdemeanor domestic violence under R.C. 2919.25.
The trial court did not err in finding the victim’s testimony credible concerning whether defendant actually committed an act of domestic violence.
JUDGMENT:    AFFIRMED

11/18/2022
Cintrifuse Landlord, LLC v. Panino, LLC, Nino Loreto, Remo A. Loreto, Patricia A. Loreto v. Cincinnati Center City Development Corporation
C-220050, C-220065
Quote from Judge Crouse:
In April 2016, Panino, a restaurant owned and operated by Loreto, entered into a commercial lease agreement with Cintrifuse, a subsidiary of 3CDC. The lease was for restaurant space located at 1313-1315 Vine Street in the Over-theRhine neighborhood of Cincinnati, Ohio.
The parties discussed the construction of an outdoor dining/bar patio in the pocket park2 called “Imagination Alley” next to Panino. However, patio space in the pocket park was not a part of the lease agreement because the park was not owned by Cintrifuse or 3CDC. The adjacent portion of Imagination Alley was and is owned by the city of Cincinnati, and the park was managed by the Cincinnati Recreation Commission (“CRC”) at all relevant times.

The trial court erred by granting summary judgment in favor of commercial landlord-plaintiff where a genuine issue of material fact existed as to whether landlord had exercised best efforts to fulfil a contractual obligation in the lease: The duty of best efforts requires the promisor to pursue its contractual obligations diligently and with reasonable effort considering its ability, the means at its disposal, and the other party’s justifiable expectations.
The trial court properly granted summary judgment in favor of commercial landlord-plaintiff on counterclaims for fraudulent inducement and fraud where the evidence showed that landlord’s representations to lessee-defendant were not false at the time they were made.
JUDGMENT:  REVERSED AND CAUSE REMANDED IN C-220050; APPEAL
DISMISSED IN C-220065

11/18/2022
John T. Crutcher v. Oncology/Hematology Care, Inc., OHC Real Estate, LLC, Randy Broun
C-220086, C-220106
After OHC formed OHCRE with Mr. Crutcher as a founding member, Mr. Crutcher took the reins as one of two managers of OHCRE in 2004, to “manage and control the business, affairs and properties” of OHCRE in conformity with its Operating Agreement (“Operating Agreement”). During his extensive involvement with OHC and OHCRE, Mr. Crutcher made a series of monetary investments in OHCRE, providing himself with an equity stake in the LLC.
Upon the termination of a member of OHC, the Operating Agreement calls for the remaining members or the company to purchase the departing member’s interest. As spelled out in the document, a member’s “Financial Interest” is comprised of various accounts, including an account that accrues 15 percent interest annually. Mr. Crutcher, at the helm of OHCRE and conversant with the Operating Agreement, certainly should have understood how all of this worked.

The trial court did not err in finding that plaintiff had waived by estoppel a claim for damages because he had accepted 64 months of payments from defendants based off a lower amount.
The trial court did not err in finding that plaintiff’s suit against certain defendants was in violation of a release in a settlement agreement drafted between the parties.
The trial court did not err in finding that the defendants did not act in bad faith when it denied plaintiff’s motion to compel where defendants had provided plaintiff with ample documentation and where plaintiff sought financial information that he should already have possessed.
The trial court erred in failing to award plaintiff prejudgment interest on his damages award in accordance with R.C. 1343.03.
The trial court did not err in finding that plaintiff’s allegedly disparaging statements were covered by the litigation privilege.

JUDGMENT:            AFFIRMED IN PART, REVERSED IN PART, AND CAUSE REMANDED