First District Friday Roundup!

Don't forget to grab a copy of "The Midnight Library" by Matt Haig for the upcoming book club!

4/06/2022
Great American Insurance Co. of N.Y. vs. Philadelphia Indemnity Insurance Co.
C-200353
Quote from Judge Crouse:
Defendant-appellant Philadelphia Indemnity Insurance Company (“Philadelphia”) appeals from the trial court’s judgment allowing plaintiff-appellee Great American Insurance Company of New York (“Great American”) to assert a claim for equitable contribution and recover partial costs of defending their common insured, Satellite Affordable Housing Association (“SAHA”). Because Great American had primary liability for SAHA’s defense costs, we reverse the judgment of the trial court and enter final judgment in favor of Philadelphia.
The trial court erred by allowing plaintiff Great American Insurance Company to seek contribution from defendant Philadelphia Indemnity Insurance Company because Philadelphia’s policy included an “other insurance” clause that made Philadelphia’s policy “excess” when another insurance company had a duty to defend: therefore, Philadelphia was not equally bound with Great American to defend their common insured, and the doctrine of equitable contribution does not apply.

4/08/2022
State of Ohio vs. Baron Brand
C-210323
Quote from Judge Zayas:
Defendant-appellant Baron Brand appeals the Hamilton County Common Pleas Court’s judgment overruling his motion to vacate his convictions. Because the common pleas court lacked jurisdiction to entertain Brand’s postconviction motion and should have dismissed it, we modify the trial court’s judgment to reflect a dismissal of Brand’s motion and affirm the judgment as modified.
Following a jury trial in 2015, Brand was convicted of two counts of aggravated murder, felonious assault with firearm and repeat-violent-offender specifications, aggravated robbery, and two counts of having a weapon while under a disability. This court affirmed his convictions in State v. Brand, 1st Dist. Hamilton No. C-150590, 2016-Ohio-7456, appeal not accepted, 149 Ohio St.3d 1464, 2017- Ohio-5699, 77 N.E.3d 988. In February 2021, Brand moved the common pleas court to vacate his convictions because the jury-verdict forms were not in compliance with R.C. 2945.75 where the forms failed to state the degree of the offense or that an aggravating element had been found. Because of the alleged lack of compliance with R.C. 2945.75, Brand maintains that he should have been found guilty and sentenced for the least degree of each offense charged.

The common pleas court had no jurisdiction to entertain defendant’s postconviction motion seeking relief on the ground that the jury-verdict forms were not in compliance with R.C. 2945.75:  the motion was not reviewable under any postconviction proceeding provided by rule or statute; and the sentence was not correctable under the jurisdiction to correct a void judgment, when it was imposed by a court with personal and subject-matter jurisdiction.

4/08/2022
In Re: N.E.
C-210181
Quote from Judge Crouse:
Respondent-appellant N.E. appeals the judgment of the Hamilton County Probate Court finding that he is a mentally ill person subject to hospitalization and treatment by court order. In one assignment of error, appellant argues that the probate court lacked jurisdiction to enter that judgment. For the reasons that follow, we overrule this assignment of error and affirm the judgment of the probate court.
On August 18, 2020, North College Hill Police brought appellant to the University of Cincinnati Medical Center Psychiatric Emergency Services for an emergency hospitalization.
The following day, the hospital filed an “Application for Emergency Admission” in the probate court. The application included a written statement by the responding police officer, which provided as follows:
Subject made incoherrent [sic], unintelligible statements throughout
the night over three separate police contacts. Statements made
include, “I have died six times,” among other similar statements.
Subject was yelling in the street, causing people to be alarmed and call
911.
Included in the application was a statement of observation by Dr. Christopher P. Marett, M.D. Dr. Marett wrote that appellant “has symptoms of mania. He has had concerning behavior leading to several police calls. Also has apparently destroyed mother’s house recently. Needs hospitalization for safety and stabilization.”

The mental-illness affidavit filed by a psychiatrist against respondent after an emergency hospitalization was sufficient to establish probable cause that respondent was a mentally ill person subject to hospitalization by court order under R.C. 5122.01(B)(4) where the affidavit detailed respondent’s destroying property, causing problems in the community, and voicing his delusions to police officers.

4/13/2022
Justin L. Dennis vs. Nicole L. Dennis
C-210370
Quote from Judge Winkler:
In 2017, mother and father entered into a shared-parenting plan with respect to their minor daughter. The parties share 50-50 parenting time under the plan. With respect to schooling, the plan provided that the parties’ daughter shall attend Harrison, Ohio, schools. At the time of the decree, mother had listed her residence in Harrison, Ohio, and father had remained in the marital home in the Three Rivers School District. The plan further provided that neither party “may remove and establish residence for the minor child outside of Hamilton County, Ohio, or the contiguous Ohio counties without the agreement of the other parent and/or an order from the Court.”
In February 2021, mother filed a motion of intent to relocate to Guilford, Indiana. Father filed a motion opposing mother’s move to the extent that it would change their daughter’s school district. Father requested that the court order their daughter to attend school in the Three Rivers School District, father’s school district of residence. The matter proceeded to trial in May 2021.
The trial court did not abuse its discretion in granting mother’s motion to relocate to Indiana and in modifying the parties’ shared-parenting plan to change their minor child’s school placement: mother’s move to eastern Indiana was only ten minutes farther from father’s home in western Hamilton County, the parties’ daughter could no longer attend school in Harrison as neither party resided in the district, and the evidence showed that attending Sunman-Dearborn schools would be in the best interest of the parties’ child because it would offer more educationally and recreationally than father’s school district of residence.

4/13/2022
Fox Consulting Group, Inc. vs. Mailing Services of Pittsburgh, Inc.
C-210250
Quote from Judge Myers:
In September 2018, Fox and MSP entered into a contract under which MSP authorized Fox to review its telecommunications systems and to submit recommendations for possible savings. Under the contract, MSP agreed to pay Fox 50 percent of all savings realized as a result of MSP’s acceptance of any recommendation made by Fox, for a period of 36 months from the date of implementation of the accepted recommendation. The contract prohibited MSP from negotiating with other consultants or suppliers prior to Fox’s submission of cost-savings recommendations and prohibited MSP from negotiating alternate pricing with other suppliers during the term of the contract. The contract provided: “Once this agreement is signed, any client savings realized shall be attributed as a [Fox] initiative.” In addition, the contract provided: “The Client warrants that they will not duplicate the work carried out by [Fox], nor will the Client negotiate alternate pricing for telecom services during the term of the agreement.” In January 2019, Fox submitted a recommendation for savings, which MSP accepted.
In March 2020, Fox filed suit against MSP for breach of contract, quantum meruit/unjust enrichment, and declaratory relief. MSP filed a Civ.R. 12(B)(6) motion to dismiss the complaint for failure to state a claim upon which relief could be granted. The trial court granted MSP’s motion and dismissed the action.
In a single assignment of error, Fox argues that the trial court erred by failing to apply the proper standard in deciding the Civ.R. 12(B)(6) motion and by dismissing the action. Fox does not challenge on appeal the trial court’s dismissal of its claim for declaratory relief.

The trial court erred by granting defendant’s Civ.R. 12(B)(6) motion to dismiss plaintiff’s breach-of-contract claim where the court failed to accept all allegations in plaintiff’s complaint as true and erred in determining that plaintiff failed to sufficiently allege that defendant breached the parties’ contract.

The trial court properly granted defendant’s Civ.R. 12(B)(6) motion to dismiss plaintiff’s quantum meruit/unjust enrichment claim because an equitable claim in quasi-contract will not lie where plaintiff acknowledged the parties’ contract covered the same subject matter.

4/15/2022
Pioneer Automotive, LLC vs. Village Gate, LLC
C-210205
Quote from Judge Crouse:
In three assignments of error, defendant-appellant Village Gate, LLC, (“Village Gate”) appeals the judgment of the Hamilton County Court of Common Pleas denying its motion to set aside a default judgment. For the reasons that follow, we affirm the trial court’s judgment.

Defendant waived any defects in service when it did not raise the insufficiency-of-service-of-process defense in its Civ.R. 60(B) motion to set aside the default judgment, where that was defendant’s first filing in the case.

Defendant could not raise an alleged issue regarding party names and whether there was a contract between those parties for the first time on appeal, where the issue was not raised in support of defendant’s arguments below.

The trial court did not err in denying defendant’s Civ.R. 60(B) motion where the parties did not agree to, and the record did not reflect that the parties reached any agreement for, an extension of time as alleged by defendant.

4/15/2022
Cileta Fry vs. City of Cincinnati, et. al
C-210482
Quote from Judge Myers:
Plaintiff-appellee Cileta1 Fry was injured when the car she was driving on Colerain Avenue was struck by a tree that fell from an adjacent city park property. She sued defendants appellants the city of Cincinnati and John Doe city employees (“the city”), alleging that she was injured as a result of the city’s negligent failure to maintain trees on its property. The city moved to dismiss Fry’s complaint pursuant to Civ.R. 12(B)(6), asserting, among other things, that the city was immune from liability under R.C. Chapter 2744, the Political Subdivision Tort Liability Act. The trial court denied the motion, and the city now appeals.

The trial court erred by denying the city’s Civ.R. 12(B)(6) motion to dismiss where plaintiff’s complaint failed to state a claim upon which relief could be granted against the city:  taking the allegations of plaintiff’s complaint as true, plaintiff failed to allege that her injury occurred within or on the grounds of a building used in connection with a governmental function, sufficient to establish the second requirement of the R.C. 2744.02(B)(4) physical-defect exception, so the exception did not apply to remove the city’s general grant of immunity under R.C. 2744.02(A)(1).

4/20/2022
State of Ohio vs. Vaton Foster
C-210447
Quote from Judge Crouse:
Defendant-appellant Vaton Foster appeals his felony conviction for domestic violence. For the following reasons, we reverse the judgment of the trial court, and remand the cause for a new trial.
Foster was indicted for one count of domestic violence under R.C. 2919.25(A), a felony of the fourth degree. Foster proceeded to a bench trial and was found guilty as charged. He was sentenced to three years of community control with the condition of a maximum of six months residential treatment at River City Correctional Center. He timely appealed
In one assignment of error, Foster contends that his conviction was against the manifest weight of the evidence. However, the state submits that the cause must be reversed and remanded for a new trial because a written jury waiver was not filed and made part of the record.
The trial court did not have jurisdiction to try defendant’s case without a jury because it did not strictly comply with R.C. 2945.05, as there was no written jury waiver signed by the defendant in the record.

4/20/2022
Blue Ash Auto Body, Inc. & Jonathan Kerr vs. Andrew Frank
C-210432
Quote from Judge Winkler:
Plaintiffs-appellants Blue Ash Auto Body, Inc., (“Blue Ash”) and Jonathan Kerr appeal the judgment of the Hamilton County Municipal Court in favor of defendant-appellee Andrew Frank. We find no merit in appellants’ two assignments of error, and we affirm the trial court’s judgment.
The trial court did not err in finding that an assignment by a customer of any claim that he had and/or proceeds that he might be entitled to receive from the person at fault in an automobile accident to an auto-body-repair shop was invalid because liability for the accident had not yet been established and, at the time of the assignment, the customer did not have a right to any proceeds. The trial court did not err in finding that an auto-body-repair shop and its customer failed to prove diminution-in-value damages against defendant, who was at fault for an automobile accident with the customer, because while they presented evidence of the cost of repairs to the customer’s truck, they failed to present evidence as to the truck’s value immediately before and after the accident.  

4/20/2022
State of Ohio vs. Kent Smith
C-210235
Quote from Judge Crouse:
Defendant-appellant Kent Smith appeals the Hamilton County Common Pleas Court’s judgment denying his Crim.R. 33 motion for a new trial. We affirm the court’s judgment because Smith did not seek leave to move for a new trial out of time.
This is a revised opinion. On January 5, 2022, Smith filed an application for reconsideration of our opinion and judgment entered on December 15, 2021. See State v. Smith, 1st Dist. Hamilton No. C-210235, 2021-Ohio-4388. In his application, he argued that we erred in holding that he filed his motion for a new trial prior to being sentenced and while he w as represented by counsel. In our December 15, 2021 opinion, we held that Smith had no right to file his motion pro se, and therefore, his motion was a legal nullity. In an entry filed contemporaneously with this revised opinion, we granted Smith’s application for reconsideration after further review of the record. We agreed that it was inaccurate and unfair to conclude that Smith’s motion for a new trial was a legal nullity. Accordingly, we vacated our prior opinion of December 15, 2021, in its entirety. We now replace it with the following opinion.
The common pleas court did not abuse its discretion in denying, without a hearing, defendant’s Crim.R. 33(A) motion for a new trial, when that motion was not timely filed, and leave under Crim.R. 33(B) to move for a new trial out of time was not sought.

4/20/2022
State of Ohio vs. Robert Earl Neal
C-210166
Quote from Judge Myers:
Following a bench trial, the trial court found defendant-appellant Robert Earl Neal guilty of murder and having a weapon while under a disability, rejecting Neal’s claim that he shot Anthony Harris in self-defense. On appeal, Neal challenges the weight and sufficiency of the evidence supporting his murder conviction, the trial court’s admission of certain evidence over his objection, and its failure to merge allied offenses of similar import for sentencing. We vacate Neal’s sentences in part and affirm the trial court’s judgment in all other respects.

Defendant met his burden of production to show that he used deadly force in self-defense so as to require the state to disprove at least one of the elements of self-defense where defendant’s assertion that the victim pointed a gun in his face, which caused him to act in self-defense, was supported by evidence that the victim had a gun within reach.

The trier of fact may reasonably have found that defendant did not act in self-defense when he shot and killed the victim where the state disproved at least one element of defendant’s self-defense claim, which are: (1) the defendant was not at fault in creating the situation giving rise to the affray; (2) the defendant had a bona fide belief that he was in imminent danger of death or great bodily harm and that his only means of escape from such a danger was in the use of such force; and (3) the defendant did not violate any duty to retreat or avoid the danger.

The trial court did not abuse its discretion in admitting evidence of a chat and videos from defendant’s Facebook page where the evidence was probative of defendant’s identity, his possession of the weapon used to kill the victim, and his attempt to get rid of the weapon; Evid.R. 403(A) did not require exclusion of the evidence where the record contains no indication that the evidence aroused in the trier of fact such passion, sympathy, horror, or instinct to punish so as to be unfairly prejudicial.