First District Friday Roundup (5/27/2022)

Just a friendly reminder that the library will be closed in observance of Memorial Day on Monday, May 30, 2022. We will resume hours as normal on Tuesday!

State of Ohio v. Lorena Celis
Quote from Judge Crouse:
Celis pleaded guilty to theft, in violation of R.C. 2913.02(A)(1), a felony of the fourth degree. She was sentenced to two years of community control and six months at River City Correctional Center (“RCCC”), with a period of postresidential community supervision as ordered by RCCC.
After Celis completed the residential portion of RCCC, she violated her conditions of community control by committing several “technical violations.” Celis pleaded no contest to and was found guilty of the violations. She was sentenced to 180 days in the Ohio Department of Corrections, plus an additional year of community control with no credit for time served.
The trial court erred by failing to properly calculate and award jail-time credit for defendant’s time served in confinement.
The trial court did not err in sentencing defendant to a 180-day prison term, plus an additional year of community control for “technical violations” of the conditions of her community control because R.C. 2929.15(B)(1) plainly authorizes trial courts to impose a longer term of community control, a more restrictive community control sanction, a prison term,  or a combination of the three options.

State of Ohio v. William Embree
Quote from Judge Myers:
Embree was indicted on charges of carrying a concealed weapon and improperly handling a firearm in a motor vehicle. Prior to a bench trial on these offenses, the parties made the following stipulations to the court: that police came into contact with Embree on May 22, 2021; that an unloaded Smith & Wesson 9 mm firearm was found inside a gun box on the front passenger seat of Embree’s vehicle; that the firearm was operable; and that a box of 9 mm ammunition for the firearm was found sitting next to it.
At the bench trial, Springfield Township Police Officer William Yeager testified that, upon responding to a call regarding a disturbance at a Speedway gas station around 10:30 p.m., he encountered Embree inside his vehicle in the gas station parking lot. Officer Yeager approached the vehicle and spoke to Embree. During their conversation, he noticed what appeared to be a gun box on the vehicle’s front passenger seat. He questioned Embree about the box, and Embree responded, “That’s my gun.” According to Officer Yeager, the gun box was located approximately one-and-a-half to two feet away from Embree and was within Embree’s reach. When Officer Yeager opened the passenger door to remove the gun, he noticed a box of 9 mm ammunition sitting directly next to the gun case in a cup holder. The weapon itself was unloaded, but there were several rounds of ammunition inside the ammunition box. Embree admitted that he did not have a concealed carry license, and he failed to provide the officer with an explanation as to why the firearm and ammunition were in the vehicle.
Where defendant was seated in the driver’s seat of his automobile, the weapon was found in a gun box on the front passenger seat, and the accompanying ammunition was found next to the gun box in a cup holder, the state established that the weapon and ammunition were ready at hand and defendant’s conviction for carrying a concealed weapon was supported by sufficient evidence. 
Defendant failed to prove by a preponderance of the evidence that he transported the firearm for a lawful purpose. 

Lisa A. Morrison v. Frank S. Walters
Quote from Judge Bergeron:
Mr. Walters and plaintiff-appellee Lisa Morrison came to the domestic relations court seeking a divorce after nearly 25 years of marriage. Throughout their marriage, the parties accumulated a number of real estate properties, automobiles, and financial assets. The magistrate sifted through the evidence at two hearings before setting forth detailed findings of fact and conclusions of law resolving the issues and divvying up the assets. Mr. Walters timely objected to four of the findings. In short, Mr. Walters contended that he should have been granted spousal support in light of the parties differing earning abilities; that Ms. Morrison committed financial misconduct by gambling and making interest-only payments on a home equity line of credit; that a brokerage account was divided inequitably; and that Ms. Morrison should not be removed from the parties’ limited liability holding company until all the rental properties are sold. After the trial court overruled these objections and entered a final decree of divorce, Mr. Walters now marshals those same objections before this court.
In a divorce action, the trial court did not abuse its discretion in finding that husband had similar earning potential to wife and denying an award of spousal support where husband offered no evidence to contradict the court’s findings.
      The trial court did not abuse its discretion in finding no financial misconduct on the part of wife who gambled and made interest-only payments on a home equity line of credit, where husband accompanied her on gambling trips and where husband may have disagreed with wife’s chosen method of loan repayment but he never inquired about the status of the loan and interest-only payments were an option for repayment.

State of Ohio v. Kevin Johnson
Quote from Judge Zayas:
Kevin Johnson was indicted for four drug-related felonies: trafficking in and possession of cocaine that was found in a search of the house owned by Johnson’s twin brother, Keith, and trafficking in and possession of cocaine found in the map pocket of the passenger seat and under the driver’s seat of the car Johnson had been driving after leaving Keith’s house. The cocaine under the driver’s seat was in a vacuum-sealed bag. The vacuum-sealed bag was inside a Walmart plastic bag, which had then been placed inside a Menard’s plastic bag. A fingerprint found on the Menard’s bag was identified as Johnson’s left thumbprint.
The common pleas court erred by denying defendant’s R.C. 2953.21 petition for postconviction relief without first holding an evidentiary hearing where: (1) defendant had satisfied his initial burden of setting forth substantive grounds for relief and (2) res judicata did not operate to bar defendant’s postconviction claims where each claim was supported by cogent evidence outside the original trial record.

The Bank of New York Mellon v. Necole Mitchell, Michael L. Griffin
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). This is an appeal from a decision granting summary judgment to plaintiffappellee The Bank of New York Mellon (“BONY”) on its foreclosure action against defendants-appellants Necole Mitchell and Michael L. Griffin (“defendants”). On appeal, defendants raise 11 assignments of error, challenging an array of purported procedural errors and essentially arguing that BONY has no legal mortgage on which it can foreclose on the property at issue. After careful review of all of the evidence and relevant authorities, however, we affirm the trial court’s judgment in this foreclosure matter.

State of Ohio v. Brian Barnes
C-210345, C-210346, C-210347, C-210348
Quote from Judge Zayas:
Brian Barnes pled guilty to assault in the case numbered C-20CRB20040A, and three counts of theft in the cases numbered 21CRB-2991, 21CRB-1632, and 20CRB-23750. In the assault case, and two of the theft cases, the court sentenced Barnes to a jail term of 180 days, to be served consecutively, with credit for time served. In the theft case numbered 21CRB-2991, the trial court imposed a sentence of 180 days in jail, suspended 176 days, credited 14 days, and placed Barnes on two years of community control and imposed a no-contact order. The court ordered Barnes to pay restitution for the thefts.
The trial court erred in imposing a suspended jail term that in the aggregate, exceeded the 18-month maximum jail term set forth in R.C. 2929.25(A)(1) and miscalculating jail-time credit.
The trial court erred in imposing a no-contact order when defendant was not placed on community control.
The trial court properly announced the restitution amounts imposed in open court.

In re: W/H Children
Quote from Judge Winkler:

The record shows that HCJFS’s involvement with D.W. began shortly after D.W.’s birth in August 2020. The birthing hospital staff became concerned with mother’s erratic behavior and instances of mother failing to properly handle her newborn. After mother and D.W. were discharged from the hospital, HCJFS filed a motion for temporary interim custody of D.W., and a motion with the court requesting a determination that HCJFS need not make reasonable efforts to eliminate the continued removal of D.W. from the home, because mother had two children who had been involuntarily committed to the custody of HCJFS in March 2013 and November 2019. Mother also had another child who was placed in the legal custody of paternal grandmother in January 2013. The trial court granted both of HCJFS’s motions. HCJFS then filed a complaint seeking permanent custody of D.W.

Marietta K. Garber, Guardian of Dorothy Lockspeiser v. Michael J. Schneider, Ohio Attorney General
Quote from Judge Myers:
In 2007, Schneider bought a condominium from Lockspeiser, which was down the hall from her own condominium. Lockspeiser had inherited the condominium that she sold to Schneider from her brother’s estate. Schneider was represented by attorney David E. Nelson in connection with the purchase.
Twelve years later, in May 2019, Catherine Staskavich, Ph.D., evaluated Lockspeiser in response to concerns raised by Adult Protective Services. According to Dr. Staskavich’s affidavit, she had been contacted by Adult Protective Services for a possible guardianship situation due to “apparent financial exploitation” of Lockspeiser by her neighbor Schneider, “to whom she had given hundreds of thousands of dollars in the last few years.” Dr. Staskavich conducted a psychological evaluation of Lockspeiser on May 6, 2019, and concluded that she was suffering from a progressive “major neurocognitive disorder,” and, “[g]iven the scope of her cognitive deficits, impaired insight, and judgment,” she required a guardian of her person and estate.
The probate court erred by granting summary judgment to invalidate a trust amendment for lack of capacity where the parties presented conflicting evidence from which alternate conclusions could be drawn as to the settlor’s lack of capacity.
The probate court abused its discretion by sua sponte exercising its power under R.C. 2111.50(B)(4) to revoke a ward’s trust amendment without complying with the notice and hearing requirements set forth in R.C. 2111.50(E).

Derek Lester v. FCA US LLC
C-210532, C-210536
Quote from Judge Myers:
On November 14, 2016, Lester purchased a new 2016 Ram 1500 truck. With his purchase of the vehicle, Lester received FCA’s three-year/36,000-mile Basic Limited Warranty, in which FCA promised to cover “the cost of all parts and labor needed to repair any item on [the] vehicle when it left the manufacturing plant that is defective in material, workmanship, or factory preparation.” Tires are expressly not covered under the warranty. Lester also received FCA’s five-year/100,000-mile Powertrain Warranty, in which FCA promised to cover repairs to only certain listed powertrain components.
The trial court did not abuse its discretion by refusing to give a requested jury instruction on the plaintiff’s burden of proof in a Lemon Law claim under R.C. 1345.72, where the instruction given by the court correctly and completely stated the law, and where the requested jury instruction merely restated the language in the court’s instruction.
The trial court erred by failing to grant defendant’s Civ.R. 50(B) motion for judgment notwithstanding the verdict on plaintiff’s Consumer Sales Practices Act claim predicated on the existence of a warrantable defect where the jury specifically found that plaintiff’s vehicle had no warrantable defect and that defendant breached no warranty—the jury’s finding that defendant manufacturer committed an unfair or deceptive act by its dealer’s failure to contact plaintiff about its possession of a device to diagnose a vehicle defect was inconsistent with the jury’s findings that no warrantable defect existed and that defendant breached no warranty.

Ellen F. Krasik v. Howard Newstate
Quote from Judge Bergeron:
In June 2016, roughly two weeks after H.K. was born, Dr. Krasik and Mr. Newstate separated. They had lived together for around one year at the time, but they never married. Mr. Newstate insists that Dr. Krasik kicked him out, whereas Dr. Krasik testified that Mr. Newstate broke off the relationship months earlier. Regardless, Mr. Newstate has not seen H.K. since then and he has provided practically no financial support to the child at all (although he did carry H.K. on his health insurance until 2017).
Mr. Newstate has a background in marketing, communications, and technology. From 2014 until 2016, Mr. Newstate worked with Cedar Fair Entertainment Company, earning around $90,000 per year. Mr. Newstate voluntarily left his position with Cedar Fair in 2017 after receiving an offer from Holovis International Ltd. (a UK based company) with a $90,000 base salary (along with a $16,000 bonus). Mr. Newstate’s time with Holovis proved to be short lived, however, as they parted ways in 2018. Mr. Newstate took up independent contracting in 2018, and earned $77,117 on independent contracts that year. Mr. Newstate’s federal income tax return shows that he earned $98,699 in 2018 (combining his independent contracting income with his work for Holovis).
The trial court did not err by finding that father was voluntarily underemployed and had a potential income of $80,000 under R.C. 3119.01(C)(17) after he left jobs that paid more than $80,000 to travel the world in an RV while running a small business from the back of that RV.
          The trial court did not abuse its discretion under R.C. 3119.04(B) by imposing a child support order despite the fact that the child lives in a wealthy household.
         The trial court did not err by excluding employer contributions to mother’s retirement account in her gross income when calculating child support because Ohio courts have consistently rejected the notion that employer contributions to a retirement account constitute gross income for child support purposes.
        The trial court did not abuse its discretion by finding that employing a nanny constituted a reasonable daycare expense because the nanny enabled mother to work long, unpredictable hours.
             The trial court did not abuse its discretion by refusing to grant a downward deviation from the child support obligation under R.C. 3119.23 merely because mother’s annual household income exceeds $1 million.

Custom Pro Logistics, LLC v. Penn Logistics LLC
Quote from Judge Zayas:
On March 6, 2020, Custom Pro Logistics, LLC, (“CPL”) filed a complaint against Penn, alleging three causes of action based on goods allegedly damaged by defendant during transport. The summons and complaint were issued via certified mail service to Penn on March 10, 2020. Confirmation of delivery was returned on March 16, 2020, showing delivery on March 13, 2020. Penn did not file an answer. On September 11, 2020, CPL moved for a default judgment against Penn, pursuant to Civ.R. 12 and 55. The trial court granted CPL’s motion for a default judgment on September 29, 2020, and entered judgment in CPL’s favor.
The trial court did not abuse its discretion in denying defendant’s motion to vacate the default judgment against it where certified mail service was properly delivered to the correct address.     
The trial court did not abuse its discretion in denying defendant’s motion for relief from judgment under Civ.R. 60(B)(1) where defendant did not dispute that two businesses operated out of the same address and no internal procedures were put into place to ensure receipt of service by the appropriate business or person.