First District Friday Roundup!

The library will be closed on Monday October 10th.

The library has an upcoming CLE in the theme of Domestic Violence Awareness & Prevention month. Register for the CLE HERE!

9/30/2022
Fred B. Hamilton v. Dorothy M. Barth, the Executrix of the Estate of Louis E. Barth, Dorothy F. Barth
C-210605
Quote from Judge Zayas:
Hamilton filed this action for breach of contract, specific performance, and a declaratory judgment on October 23, 2018, regarding an alleged land installment contract.2 On November 21, 2018, defendants filed an answer and a counterclaim against Hamilton for slander of title based on an affidavit filed by Hamilton in the county recorder’s office asserting that Hamilton had an interest in the subject property by virtue of the alleged land contract.
On September 18, 2019, defendants moved for summary judgment on Hamilton’s claims, arguing that the purported contract was unenforceable as it failed to meet the minimum requirements for a land installment contract under R.C. 5313.02. Hamilton opposed summary judgment, asserting that genuine issues of
material fact remained as to whether the contract was enforceable as it substantially complied with the requirements of R.C. 5313.02. The trial court ultimately granted defendants’ motion for summary judgment on December 27, 2019, after finding that all parties had acknowledged that the document was never notarized as required by R.C. 5301.01(A). Hamilton appealed the trial court’s grant of summary judgment.

Where plaintiff buyer sued to enforce a purported land installment contract, the trial court properly granted summary judgment in favor of defendants sellers where the contract at issue was never fully executed and the parties did not perform under the contract.  
JUDGMENT:    AFFIRMED

9/30/2022
Jason P. Owens v. Jecqueline Owens
C-210488
Quote from Judge Zayas:
Husband and wife met in Philadelphia and moved to Ohio together in 2009. They purchased a home together in 2011 and were married on July 12, 2012. At the time of the marriage, husband held an Equiniti account which contained stock from The Proctor and Gamble Company (“P&G”). The parties had their first child in 2015 and their second child in 2018. Issues arose during the marriage related to husband’s sexual addiction issues and infidelity with prostitutes, as well as wife’s use of pain medication and other mental health related issues. Husband started seeing a therapist, and wife engaged in mental-health treatment. The parties also engaged in couple’s counseling.
Ultimately, husband filed for divorce on January 28, 2020. In May of 2020, the parties’ oldest child, L.O., made comments to wife that created a concern of sexual abuse by husband. Wife took L.O. to the emergency room, where she was told to follow up with the Mayerson Clinic. L.O. was interviewed by the Mayerson clinic and wife was told that the Mayerson Clinic would be following up with the Hamilton County Department of Job and Family Services (“HCJFS”). L.O. was interviewed by an assessment worker from HCJFS. Wife ultimately learned that the allegations were not going to be pursued by the authorities.

SUMMARY:  

The trial court did not err in awarding any premarital equity in the martial home to both parties where the record showed that the parties were living together at the time of purchase, joint funds were used to purchase the home, the parties renovated the home together, and the subsequent premarital mortgage payments were withdrawn from the parties’ joint checking account where both parties deposited their paychecks.   

Where two separate valuations are submitted for the marital home, both of which occurred beyond the date that the trial court determined to be the last date of the marriage, the trial court abused its discretion by utilizing the second valuation when the first valuation was completed much closer in time to the marriage-termination date and accordingly was much more representative of the value of the home at the time of termination.   

The trial court erred in determining that husband failed to submit sufficient tracing evidence to show that his premarital stock shares remained his separate property, despite being commingled with martial shares, where the evidence in the record showed that, except for one sale which occurred only from husband’s premarital shares, only additions were made to the share account during the duration of the marriage.

The trial court did not abuse its discretion in awarding wife sole residential and legal custody of the parties’ children where the trial court properly considered the required best-interest factors and the trial court’s findings were supported by the record.   

The trial court did not abuse its discretion when ordering parenting time for husband where the record shows that the trial court properly considered the health and safety of the children, and the order provided husband with frequent and continuing contact with the children.  

The trial court did not abuse its discretion by backdating the effective date of the child-support order where the date used by the court coincided with the significant event that wife began having the children on a full-time basis.  

The trial court abused its discretion in granting wife an award of attorney fees where the award was based on an assumption not supported by the record. 

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

9/30/2022
State of Ohio v. William Jackson
C-200332
Quote from Judge Winkler:
Jackson entered a guilty plea to one count of felonious assault, a second-degree felony, with a one-year firearm specification. In exchange, the state dismissed other counts and an additional firearm specification.
The felonious-assault offense occurred on or about September 1, 2019, subjecting Jackson to the indefinite sentencing provisions of the Reagan Tokes Law, effective March 22, 2019. Prior to sentencing, Jackson raised a constitutional challenge to the Reagan Tokes Law and requested to be sentenced under the former, definite sentencing scheme. The trial court rejected Jackson’s constitutional challenge and imposed an indefinite sentence of a minimum term of two years in prison and a maximum term of three years in prison for the felonious assault, to be served consecutively to a one-year term for the firearm specification. In addition, the court classified Jackson as a violent offender and told him that he would be required to register with Ohio’s Violent Offender Database pursuant to R.C. 2903.41 through 2903.44 (“Sierah’s Law”) upon his release from prison.

SUMMARY:   
            Defendant failed to demonstrate that his guilty plea was not made knowingly, voluntarily, and intelligently where the trial court fully complied with Crim.R. 11(C)(2).

The trial court erred by classifying defendant as a violent offender and ordering defendant to enroll in the violent-offender registry pursuant to R.C. 2903.41 where defendant was not convicted under any of the qualifying code sections.

The trial court did not err by imposing an indefinite sentence for a second-degree-felony offense where the Reagan Tokes Law is not unconstitutional on its face, see State v. Guyton, 1st Dist. Hamilton No. C-190657, 2022-Ohio-2962, but the trial court erred in failing to provide at sentencing the notices required by R.C. 2929.19(B)(2)(c).

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

09/30/2022
State of Ohio v. Devin Johnson
C-200233
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). Devin Johnson appeals his indefinite sentence for the offense of felonious assault on a peace officer. In one assignment of error, he argues the trial court erred in sentencing him as a matter of law because the indefinite sentencing provisions of the Reagan Tokes Law are unconstitutional.
SUMMARY:              
          Defendant failed to demonstrate that his guilty plea was not made knowingly, voluntarily, and intelligently where the trial court fully complied with Crim.R. 11(C)(2).

The trial court erred by classifying defendant as a violent offender and ordering defendant to enroll in the violent-offender registry pursuant to R.C. 2903.41 where defendant was not convicted under any of the qualifying code sections.

The trial court did not err by imposing an indefinite sentence for a second-degree-felony offense where the Reagan Tokes Law is not unconstitutional on its face, see State v. Guyton, 1st Dist. Hamilton No. C-190657, 2022-Ohio-2962, but the trial court erred in failing to provide at sentencing the notices required by R.C. 2929.19(B)(2)(c).

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

10/05/2022
Carol Hammond v. Jay Lotz, Cathy Lotz, Group Management Services, Inc.
C-220002
Quote from Judge Crouse:
At all times relevant to this action, Hammond was employed as a driver for FedEx. As a driver, Hammond drove a FedEx truck and delivered FedEx packages to homes and businesses. On the morning of October 19, 2019, Hammond parked her FedEx box truck on the street in front of the Lotzes’ home, just beyond their driveway, to deliver a package to them. Hammond set the long, skinny package on the floor of the truck and stepped down onto the ground, facing their home. Hammond testified that she then turned around, grabbed the package, and took two steps towards the Lotzes’ home—planning to walk through their front yard. Hammond then twisted her left foot in a low-lying corner of the Lotzes’ lawn (the “edging ditch”), fell, and broke her left wrist trying to catch herself. Testimony from Hammond, Jay Lotz, and the Lotzes’ neighbor indicated that the edging ditch was less than two inches wide and less than two inches deep, and that it was created by Jay Lotz’s string trimmer as part of his routine lawn maintenance.

The trial court did not err in granting summary judgment in favor of defendant property owners because the edging ditch that plaintiff invitee tripped on, injuring herself, was an open-and-obvious condition, and plaintiff failed to demonstrate attendant circumstances.

JUDGMENT:  AFFIRMED

10/05/2022
In re: C.R.
C-210591
Quote from Judge Zayas:
On February 11, 2020, petitioners–maternal grandfather and his wife– filed a complaint in the juvenile court for nonparent custody of C.R. The complaint asserted that the biological father of C.R. was unknown and stated that C.R. was born a few days prior to the filing of the complaint and was in the NICU for drug withdrawal as he was born addicted to opioids and other drugs. Emergency interim custody was granted to petitioners that same day and extended to petitioners on February 14, 2020. Interim custody of C.R. was granted to petitioners on June 9, 2020 Mother agreed to interim custody to petitioners and provided father’s name as the potential father of C.R.
On August 19, 2020, father appeared before the juvenile court and said that he planned to establish paternity. Because paternity had not been established, the juvenile court did not grant father any visitation with C.R. An entry from the juvenile court on October 28, 2020, indicated that father had reported to the court that he had filed to establish paternity.

The trial court abused its discretion in finding that father was not a suitable parent where the evidence was insufficient to show that father abandoned the child or that custody to father would be detrimental to the child. 

JUDGMENT:             REVERSED AND CAUSE REMANDED

10/07/2022
State of Ohio v. Elena Hammock
C-210518, C-210620
Quote from Judge Bergeron:
In October 2019, Dale Marshall, the Health Inspector for the Norwood City Health Department, visited Ms. Hammock’s home to post a notice to vacate the property due to a lack of running water. Based on a long history of confrontations between Ms. Hammock, her neighbors, and the city of Norwood, Mr. Marshall asked three police officers to accompany him. While there, Mr. Marshall noticed junk and debris overtaking Ms. Hammock’s yard, prompting him to issue an order directing her to clean the property up within 15 days. Ms. Hammock later requested an additional 60 days to clear the property, which the city granted. Some eight months later, however, the property sat more or less in the same state.

The trial court did not err in convicting defendant under an accumulation of garbage ordinance which was not unconstitutionally vague.
Where defendant failed to identify any plain error with respect to the trial court’s jury instructions concerning the mens rea element, defendant’s conviction will not be reversed on appeal.
Defense counsel was not ineffective where he raised the constitutional challenge to the ordinance in the trial court and where defendant failed to identify any alleged error by counsel with respect to the jury instructions.
JUDGMENT:   AFFIRMED

10/07/2022
State of Ohio v. Dale Meister
C-210456
Quote from Judge Myers:
In February 2019, Meister was indicted for three counts of rape in violation of R.C. 2907.02(A)(1 (b). The victim was his granddaughter, who was under the age of 13 at the time of the offenses. Meister entered guilty pleas to three counts of rape in violation of R.C. 2907.02(A)(2) in April 2019, and the trial court imposed the agreed sentence of four years for each count, to be served consecutively. Meister did not appeal.
In 2021, Meister moved to withdraw his guilty pleas, arguing that his trial counsel was constitutionally ineffective for failing to challenge his allegedly invalid indictment and the lack of a preliminary hearing. The trial court denied the motion, and Meister now appeals, raising six assignments of error.
In his first assignment of error, Meister argues that the common pleas court erred by denying his Crim.R. 32.1 postsentence motion to withdraw his guilty pleas. Specifically, he contends that his pleas were made unknowingly and involuntarily due to trial counsel’s constitutional ineffectiveness by failing to challenge the lack of a preliminary hearing and the allegedly invalid indictment.

     The common pleas court did not abuse its discretion in denying defendant’s postsentence motion under Crim.R. 32.1 to withdraw his guilty pleas on the ground that his trial counsel had been ineffective concerning the plea:  where defendant’s challenge raised issues that could have been raised on direct appeal, res judicata applied. 
JUDGMENT:   AFFIRMED