First District Friday Roundup (6/24)

Next Thursday (6/30) the library will be hosting a CLE for Elder Law from 12-1 pm. Attorneys Kathryn E. Buerger, William Hesch Law Firm, LLC, and Amy L. Kurlansky, Hamilton County Law Library, provide an Introduction to Elder Law Hot Topics. Register here: Elder Law Hot Topics.

B&T Business Ventures, Daljit Singh, Taminder Singh, Satparm, LLC, Karma Express, LLC v. Disi Brothers Land, LLC, Kentucky Deal Holdings, LLC, Ghassan Abu-Hilal, Stop N Shop, LLC, Ravinger Singh, Inderjeet Mann, Harpreet Singh, Pinki Singh
Quote from Judge Bock:
Disi owned real property located at 2785 Struble Road, Cincinnati, Ohio (“property”). It leased the property, along with the convenience store and gas station located on the property, to Kentucky Deal Holdings (“KDH”).
In 2016, KDH subleased the property to B&T under a lease-to-own agreement (“agreement”). B&T had the option to purchase the property by March 1,2019. Disi was not a party to this agreement.
In November 2020, B&T sued Disi, seeking a declaratory judgment, to quiet title to the property, and for unjust enrichment, constructive trust, and agency. The complaint alleged that B&T had discovered that the convenience store’s underground petroleum containers were leaking after it had taken possession of the property, causing it to spend thousands of dollars on repairs. Then, in June 2019, the store caught fire, leaving it inoperable. B&T alleged that, although the agreement excused it from paying rent during the period of inoperability, B&T continued to pay rent from June 2019 through January 2020. B&T’s insurer paid approximately $100,000 in repairs.

The trial court did not err by granting summary judgment in favor of defendant where defendant met its Civ.R. 56(E) burden of proof, plaintiff had ample opportunity to conduct discovery prior to the trial court’s judgment, and plaintiff failed to rebut the assertions in defendant’s motion for summary judgment with regard to defendant’s sole ownership of the property in question and the fact that defendant was not unjustly enriched as defendant never received a financial benefit from the lease-to-own agreement that was between codefendant and plaintiff.

Shynita Staley v. Brooke Phillips, a.k.a. Brooke Bryce
Quote from Judge Zayas:
On December 8, 2020, Staley filed a complaint against Phillips, asserting that Phillips had illegally entered Staley’s residence without consent or reasonable notice and had proceeded to engage in “self-help” eviction. Accordingly, the complaint sought damages for violations of R.C. 5321.04(A)(8) and 5321.15(A). Phillips answered the complaint on December 21, 2020. A trial was held on June 2, 2021. The trial court found in favor of Phillips on both claims and dismissed the action with prejudice on July 20, 2021. In its entry, the trial court first addressed the issue of credibility and found Staley’s testimony “wholly unworthy of belief.” The trial court then found that Phillips had provided reasonable notice of her intent to enter the premises and found that Staley had no longer been residing at the premises when the locks we rechanged, and that any property remaining at the premises had been abandoned. Alternatively, the court found that even if Staley had not abandoned the property, there was no credible evidence of the monetary value of the items remaining in the residence.

The trial court’s finding of an intent to abandon property was not supported by the evidence where the text messages in the record showed that the tenant was still claiming possession of the leased premises two days before the landlord changed the locks and disposed of the tenant’s possessions.   
Attorney fees are not warranted under R.C. 5321.15(C) where the trial court determined that the tenant suffered no damages as a result of a violation of R.C. 5321.15(A). 

Robert Migliara v. Elizabeth Migliara
Quote by Judge Crouse:
Robert filed for divorce from Elizabeth in July 2019. In December 2020, a trial was held before a magistrate. Elizabeth appeared pro se at the trial. The only two witnesses to testify were Robert and Elizabeth.
Robert testified regarding Elizabeth’s anger, temper, and mistrust. He testified that Elizabeth had accused him of seeing his ex-wife and would facetime him at work to check on him. He testified that Elizabeth placed tracking devices in his car, tore up and threw away his clothes, and broke his computers and electronic equipment. He claimed that sometimes, when she didn’t want him to leave the house, she hid his laptop and clothes. Robert testified that one day, when the child was approximately four months old, he left the house despite Elizabeth telling him not to leave because she wanted to go jogging. When he returned, the door was locked, Elizabeth was gone, and the child was home alone. Robert testified that Elizabeth had left the child at home while she went jogging and locked herself out of the house.

In a divorce case, the magistrate did not err by not appointing an interpreter for defendant wife’s psychological interviews because she was not entitled to an interpreter under the United States Constitution, the Ohio Revised Code, or the Ohio Rules of Superintendence, and the record demonstrates that she and the interviewers were able to communicate effectively.
Where wife failed to object to the admission of the custody-evaluation report at trial or raise the issue in her objections to the magistrate’s decision, she waived the right to argue against the report’s admission on appeal.
The magistrate did not violate wife’s rights to counsel or due process by asking wife directly if she was willing to undergo a psychological evaluation.

The magistrate did not commit plain error by permitting wife’s trial counsel to withdraw because counsel demonstrated that her representation of wife had been rendered unreasonably difficult by wife’s conduct.    

State of Ohio v. Joseph Mario Ralls
Quote from Judge Bergeron:
On the night of the shooting, Mr. Ralls received a car ride to Norwood to pick up some of his personal belongings from a friend’s house. Unbeknownst to Mr. Ralls, when he arrived, Mr. Bibbs sat in a vehicle parked across the street with two companions, apparently waiting for him. Although Mr. Ralls and Mr. Bibbs were close friends at one time, relations between the two had soured because of a $50 debt Mr. Ralls owed Mr. Bibbs.
As Mr. Ralls exited the vehicle and began walking towards his friend’s house, Mr. Bibbs jumped out of his car to confront him. Factual disputes exist regarding Mr. Bibbs’ body language and behavior as he approached Mr. Ralls. Mr. Ralls insists that Mr. Bibbs ran up to him in a hostile manner, but the driver of Mr. Ralls’ vehicle testified that Mr. Bibbs only briskly walked up to Mr. Ralls to greet him. Testimony likewise conflicted on whether Mr. Bibbs made any threatening statements as he approached his erstwhile friend. Mr. Ralls testified that Mr. Bibbs shouted “you’re dead,” but the driver of Mr. Bibbs’ vehicle countered that Mr. Bibbs simply conveyed, “what’s up man?” In any case, moments later, a loud verbal
exchange between the pair ensued. In the midst of all of this, Mr. Ralls pulled out his handgun and fired a single shot at Mr. Bibbs that proved fatal. Mr. Ralls then raced back to his vehicle, admonishing the driver to drive away.

The trial court did not violate R.C. 2901.05 where the record included no indicia that the trial court failed to shift the burden of persuasion to the state.
     Defendant’s conviction for felony-murder did not run afoul of the manifest weight of the evidence where the trial court resolved credibility determinations in favor of the state.
   The trial court did not commit plain error by failing to consider the affirmative defense of imperfect self-defense because Ohio law does not recognize this doctrine.
   The trial court did not commit plain error by failing to consider the lesser included offenses of voluntary manslaughter, involuntary manslaughter, and reckless homicide before convicting defendant of felony-murder because Ohio appellate courts presume that the trial court considered lesser included offenses and there is nothing in the record to rebut this presumption.   JUDGMENT: AFFIRMED

In re: J.N., a minor child
C-210317, C-210387
Quote from Judge Winkler:
On January 15, 2019, a complaint was filed against J.N. in the Hamilton County Juvenile Court, alleging that he was delinquent for having committed acts which, had they been committed by an adult, would have constituted the offense of rape. He admitted to a reduced charge of gross sexual imposition. J.N., who was 14 years old at the time of the offense, and the victim, his 12-year-old cousin, were spending the night at a relative’s home. J.N. entered the victim’s bedroom, attempted to have vaginal intercourse with her, and forced her to perform fellatio on him.
After a dispositional hearing on May 14, 2019, the juvenile court imposed a suspended commitment to the Ohio Department of Youth Services (“DYS”) until age 21, placed J.N. on probation, and ordered him to complete the sexoffender residential program at Lighthouse Youth Services (“Lighthouse”). The commitment was suspended on the condition, among other things, that J.N. “obey all laws and orders of this Court.” Subsequently, J.N. was classified as a Tier I juvenile offender registrant and was notified of his duties to register as a sex

The juvenile court’s orders continuing the juvenile’s classification as a Tier I juvenile offender registrant under the Adam Walsh Act and releasing the juvenile from “official probation” and placing him on nonreporting probation with monitored time were final, appealable orders because they affected substantial rights in a special proceeding, and the timing of the R.C. 2152.84 end-of-disposition hearing, even if erroneous, did not affect the finality of the juvenile court’s orders.
In determining whether to continue the juvenile’s Tier I classification, the juvenile court did not abuse its discretion in considering a “JFS Children’s Services Progress Report,” which had not been admitted into evidence at the R.C. 2152.84 end-of-disposition hearing, where the report was made in connection with the juvenile’s dependency proceeding during the pendency of the delinquency proceeding, the dependency proceeding had been initiated because the juvenile could not return to his father’s home due to his adjudication for gross sexual imposition, the dependency proceeding was intertwined with the delinquency proceeding, the progress report contained the same case number as the delinquency proceeding, all proceedings were filed under the delinquency case number, and the same juvenile court judge presided over the dependency and delinquency proceedings.
Any error which may have occurred in the juvenile court’s exclusion from evidence of two research articles submitted by the juvenile at the R.C. 2152.84 end-of-disposition hearing was harmless where the information contained in the two articles, as it related to the juvenile’s risk for sexual reoffending, was essentially before the court in the form of the psychologist’s report, which placed the juvenile in the low-risk-to-reoffend category.
In light of the appellate court’s highly deferential review of the juvenile court’s judgment, the juvenile court did not abuse its discretion in continuing the juvenile’s Tier I classification where the record shows that the juvenile court carefully considered the relevant factors.
The juvenile court’s order terminating the juvenile from “official probation” and placing him on nonreporting probation with monitored time was valid, did not exceed the juvenile court’s jurisdiction, and did not violate the juvenile’s due-process or double-jeopardy rights:  the court’s order did not expressly end the juvenile’s disposition; the order left the original disposition, including a suspended commitment to the Department of Youth Services until age 21, in place; the order did not impose a new condition of community control where monitored time had always been a part of the juvenile’s disposition because the court’s dispositional orders had conditioned the suspension of the commitment to the Department of Youth Services on the condition that the juvenile obey all laws and orders of the court; the court’s order did not impose any new penalties; and the juvenile was properly on notice of the requirements of his disposition from the outset.

In re: B.R.
C-220104, C-220126
We consider these appeals on the accelerated calendar, 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. Father appeals the trial court’s grant of permanent custody of his children to the Hamilton County Department of Job and Family Services (“HCJFS”). We affirm. Mother appealed, but has not filed an appellate brief, so we dismiss the appeal
numbered C-220126.
In one assignment of error, father contends that the trial court erred by granting HCJFS’s motion for permanent custody. He first argues that the manifest weight of the evidence demonstrated that B.R. could be placed with father within a reasonable time.

State of Ohio v. Gregory Wright
Quote from Judge Crouse:
The relevant facts come from a hearing held by the trial court on Wright’s motion to suppress. Sharonville Police Officer Zachary Jones testified, and the parties submitted footage from Jones’s body camera.
Jones testified that he was called to the Baymont Inn in Hamilton County, Ohio, twice on the night of January 21, 2021. Jones first responded at 1:17 a.m. to a complaint about noise and a fight on the fourth floor. The first body camera clip showed that Jones and three other officers went up to the fourth floor, where they heard loud noises coming from room 408. Jones knocked on the door and eventually a man answered. The room was noisy and full of people. Jones asked the man who had rented the room. The man said he would get the person and come right

The trial court did not err in denying defendant’s motion to suppress where police had reasonable, articulable suspicion to justify the stop of defendant and defendant’s statements to police following his arrest were voluntary and not prejudicial.

WSB Rehabilitation Services, Inc. v. Central Accounting Systems, Inc., C. Micah Rand, Inc. d.b.a. Brookwood Retirement Community, Rand Loveland LLC, d.b.a. Loveland Healthcare Nursing and Rehab Center, Evan Gray, LLC, d.b.a. Florence Park Nursing & Rehab Center, Micah Clovernook, LLC, d.b.a. Clovernook Health Care Pavilion, Crystalwood, Inc., d.b.a. Crystalwood, Inc., d.b.a. The Alois Alzheimer Center
C-210454, C-210467
Quote from Judge Bock:
In 2011, the nursing facilities entered into separate, but materially similar, agreements entitled “Agreement for Physical, Occupational, and Speech Therapy Services” (“agreements”), whereby Blue Sky provided therapy services to residents at each of the nursing facilities’ locations. The nursing facilities are managed by HCMG. HCMG requested that Blue Sky also provide therapy services to Alois, which is also managed by HCMG. As each facility had its respective agreement with Blue Sky, Alois and Blue Sky agreed that they would operate according to the terms of Blue Sky’s agreement with Clovernook.
Under “Schedule A” of the agreements, to receive payment, Blue Sky was to submit a monthly invoice that “shall” include the name of the therapist and the time spent providing services (“invoice requirement”) within six months of the service date. Although Blue Sky’s invoices from 2011 until July 2018 did not contain the invoice requirement, the facilities defendants paid the invoices. Moreover, early in the relationship, the parties implemented a direct data link between their medical record systems that instantly transferred data involving the services, such as the therapists’ names and the time the therapists spent providing services.
The agreements contained an “anti-waiver” clause: “The waiver by either party of a breach or violation of any provision of this Agreement shall not operate as, or be construed to be a waiver of any subsequent breach of the same or other provision hereof.”

The trial court properly granted summary judgment in favor of plaintiff where it was undisputed that defendants waived a condition precedent to the party’s agreements by failing to enforce an “invoice requirement” for seven years.
The trial court properly found that the anti-wavier clause contained within the agreements was not triggered as non-performance of a condition precedent is not a breach of contract and plaintiff did not violate the agreements.
The trial court properly concluded that defendants were entitled to summary judgment on defendants’ indemnification claims where the record reflects that plaintiff was required to indemnify the defendants against any losses arising out of plaintiff’s services and defendants’ losses related those services began to incur before defendants breached the agreements.
The trial court erred in granting summary judgment as to the amount of damages that plaintiffs owed on the indemnification claim because defendants were not entitled to include its own employees’ salaries as expenses and plaintiff disputed the reasonableness of the defendants’ claimed damages.
The trial court properly denied plaintiff’s motion for summary judgment on plaintiff’s tortious interference claim where co-defendants have an agency relationship.

State of Ohio v. Angelo Howard
Quote from Judge Winkler:
In 2008, Angelo Howard was indicted for the 2002 murders (and related offenses) of Gino Booker, Tim Canady, Kevin Johnson, and Keith Redding. The state’s theory of these murders was that Howard and a group of accomplices, including brothers Eugene and Carlos Jackson, Andre Thomas, Quinton Gill, Scott McCoy, and Raeshaun Hand, had been “hustling” drug dealers. Throughout 2002, this group of men had engaged in the robbery and murder of known drug dealers and would then sell the drugs obtained in the robberies for profit.
Following a jury trial, Howard was convicted of the aggravated murders (and related offenses) of Booker, Canady, and Redding. He was acquitted of the charged offenses related to the murder of Johnson. The common pleas court sentenced him to an aggregate prison term of 148 years’ to life imprisonment.
In State v. Howard, 1st Dist. Hamilton No. C-100240, 2011-Ohio2862, appeal not accepted, 130 Ohio St.3d 1418, 2011-Ohio-5605, 956 N.E.2d 310, this court reversed Howard’s convictions related to Redding, but affirmed Howard’s convictions related to the murders of Booker and Canady.

The trial court erred by denying defendant’s 2020 Crim.R. 33(B) motion for leave to file a new-trial motion on the basis of newly discovered evidence and prosecutorial misconduct where the court, considering the new-trial motion and finding it to be meritless, used that conclusion as its basis for denying the Crim.R. 33(B) motion for leave:  the merits of a delayed motion for a new trial are not properly before the trial court until that court first grants leave to file the new-trial motion, and further, leave to file a new-trial motion on the basis of newly discovered evidence or prosecutorial misconduct may only be granted where the trial court finds that defendant, using reasonable diligence, was unavoidably prevented from timely discovering that evidence or timely filing a new-trial motion, respectively.
     The trial court erred by denying defendant’s 2019 Crim.R. 33(B) motion for leave to file a new-trial motion without first holding an evidentiary hearing where defendant’s new-trial motion asserted a Brady claim, see Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and where defendant presented evidence tending to show that the state had suppressed the evidence: (1) an evidentiary hearing is required on a Crim.R. 33(B) motion for leave to file a new-trial motion where evidence is presented that defendant was unavoidably prevented from discovering the evidence on which he now relies and (2) in a delayed motion for a new trial that asserts a Brady violation, a defendant is not required to show that he could not have discovered the suppressed evidence by exercising reasonable diligence but instead satisfies Crim.R. 33(B)’s unavoidable-prevention requirement by establishing that the state suppressed the evidence on which defendant now relies. State v. Bethel, Slip Opinion No. 2022-Ohio-783.