First District Monday Roundup! (8/22)

08/19/2022
State of Ohio, ex rel. Ryan Thelen v. State Employment Relations Board, Cincinnati City School District
C-210576
Quote from Judge Crouse:
During the 2017-2018 school year, relator-appellant Ryan Thelen held a full-time social studies teaching position at Dater High School. In February 2018, a part-time seventh-grade teaching position came open at Walnut Hills High School. Thelen applied for the position. Both schools are members of the Cincinnati City School District (“Cincinnati Public Schools” or “CPS”). Pursuant to the collectivebargaining agreement (“CBA”) between CPS and the Cincinnati Federation of Teachers Union (“the union”), CPS must first consider internal candidates for positions that open during the school year, before it considers external candidates. Therefore, as a current CPS teacher, Thelen had the opportunity to interview for the position before CPS considered any outside candidates.
Thelen was interviewed by a panel consisting of Walnut Hills Assistant Principal Joe Stewart and five teachers from Walnut Hills High School. According to the CBA, selection of a candidate required agreement between Stewart and a majority of the other panel members. The panel did not select Thelen for the position. On April 4, 2018, Thelen filed a grievance with CPS through the union. Shortly thereafter, CPS hired Elizabeth Moore, an outside candidate, for the position. Moore’s position was then converted from part-time to full-time.

The trial court abused its discretion in denying relator’s complaint for a writ of mandamus on the basis that relator’s unfair-labor-practice charge had been determined at arbitration because the arbitration was limited to determining the merits of a grievance filed under the collective-bargaining agreement and did not concern relator’s unfair-labor practice charge filed under R.C. 4117.11, and the teaching position that was the subject of the arbitration was separate from the teaching position that was the basis for the unfair labor-practice charge. [But see DISSENT: The trial court did not abuse its discretion in denying relator’s complaint for a writ of mandamus because the State Employment Relations Board investigated relator’s unfair-labor-practice charge and found that the charge was not supported by probable cause.]
JUDGMENT:  REVERSED AND CAUSE REMANDED

08/19/2022
State of Ohio v. Nicholas Bella
C-210581
Quote from Judge Bock:
In June 2019, Bella was indicted on one count of rape in violation of R.C. 2907.02(A)(1)(c), one count of sexual battery in violation of R.C. 2907.03(A)(2), one count of sexual battery in violation of R.C. 2907.03(A)(3), one count of unlawful sexual conduct with a minor in violation of R.C. 2907.04(A), and two counts of illegal use of a minor or impaired person in nudity-oriented material or performance in violation of R.C. 2907.323(A)(1).
Bella had been riding around in a vehicle with four teenagers, including a 15-year-old girl, M.G. Bella had made advances toward M.G. earlier that evening, but she rejected him. M.G. and her boyfriend eventually passed out from the effects of alcohol and Xanax and were asleep in the rear bay of the SUV. While a codefendant was recording, Bella climbed into the rear bay of the SUV, stripped naked, pulled down M.G.’s pants and underwear, and began to masturbate over her. Bella looked directly into the camera as he was committing this act, “gave a hand signal,” and then the video had cut off before Bella vaginally penetrated M.G. Bella raped M.G. for approximately 20 to 25 minutes after the video stopped.

         The trial court did not err by imposing community notification under R.C. 2950.11(F)(2)(a)-(k) where the record shows that the trial court properly considered the statutory factors, including defendant’s prior record, the presentence investigation, and the parties’ arguments.  
         The trial court erred by failing to merge defendant’s two counts of sexual battery in violation of R.C. 2907.03(A)(2) and (3) as the counts were both based on defendant’s perpetration of rape on the teenaged victim while she was unconscious.
JUDGMENT:   AFFIRMED

08/19/2022
In re: J.L., N.L., A.N., N.L., J.L.
C-210586
Quote of Judge Bergeron:
Mother and father are the biological parents of five minor children (J.L.1, N.L.1, A.L., N.L.2, and J.L.2). In 2013, the parents were charged with child endangerment related to the conditions of their home, but ultimately pleaded guilty to disorderly conduct. The trial court ordered the parents to comply with HCJFS directives as a condition of community control. Then, in September 2017, the children were adjudicated neglected and dependent after N.L.2, who was two years old at the time, was found roaming the neighborhood unsupervised. The children were returned to the parents’ custody in January 2018.

         The juvenile court did not deprive parents of their fundamental right to raise their children when it granted temporary custody to the Hamilton County Department of Job and Family Services (“HCJFS”) and the record included some evidence that this disposition furthered the welfare of the children.
         The juvenile court did not err by finding that HCJFS made reasonable efforts towards reunification where HCJFS’s case plans intended to address the concerns that justified removal of the children from the parents’ custody.
        The juvenile court did not violate Juv.R. 40(D)(4)(d) when it refused to hear evidence of communications that occurred between counsel that arose between the filing of the objections to the magistrate’s decision and the hearing on those objections.
JUDGMENT:  AFFIRMED

08/17/2022
Brandi Klotz v. Game On Sports Bar & Grill
C-210401
Quote from Judge Winkler:
Game On is a small bar and casual restaurant. Since July 2017, the bar has been owned and operated primarily by Hunter Hampton and Matthew Mann. At the time the bar was purchased from the prior owners, Klotz already worked at the bar and she retained her position as a bartender and server. Klotz then reported to Hampton, whom she considered to be “fair” and a “friend.”
Joey McCoy was hired as a cook around early 2019. Klotz and McCoy generally worked at the same time for at least one eight-hour shift each week. Klotz closed the bar every Sunday and Monday night alone with the same regularly scheduled cook. When that regularly-scheduled cook took two weeks of vacation and McCoy filled in, Klotz alleged that McCoy subjected her to sexual harassment.

            The trial court did not err in granting summary judgment to defendant former employer on plaintiff former employee’s hostile-work-environment claim because plaintiff could not establish that defendant failed to take immediate and appropriate corrective action in response to plaintiff’s complaint of sexual harassment by a coworker where defendant timely issued a warning to the alleged harasser, contacted plaintiff and other female employees and urged them to come forward immediately if they experienced any inappropriate conduct, and took steps to ensure that plaintiff would never be alone with the alleged harasser, actions that undisputedly ended the harassing conduct.
JUDGMENT:  AFFIRMED

08/17/2022
In re: E.Y.
C-210548
Judgement Entry:
E.Y. has appealed the juvenile court’s order revoking his parole and committing him to the Department of Youth Services (“DYS”) for 90 days. The court additionally ordered the termination of E.Y.’s parole obligation at the conclusion of the 90 days.
E.Y. raises three assignments of error, but he allows that the case is “technically” moot because he has been released from his 90-day commitment from DYS. This court lacks jurisdiction over cases that no longer present live controversies. “If the controversy has come and gone, then [a] court must dismiss the case as moot.” M.R. v. Niesen, Slip
Opinion No. 2022-Ohio-1130, ¶ 7.
To save the appeal from dismissal, E.Y. argues the issue he raises concerning the
due-process rights afforded juvenile parolees in revocation proceedings is “capable of
repetition yet evading review.” The Ohio Supreme Court has explained the exception to mootness for issues that are capable of repetition yet evading review applies only in exceptional circumstances in which the following two factors are both present: (1) the challenged action is too short in its duration to be fully litigated before its cessation or expiration and (2) there is a reasonable expectation that the same complaining party will be subject to the same action again. See, e.g., M.R. at ¶ 11; State ex rel. Calvary v. Upper Arlington, 89 Ohio St.3d 229, 231, 729 N.E.2d 1182 (2000).

08/17/2022
State of Ohio v. Buddy Struckman
C-210640
Quote from Judge Myers:
Petitioner-appellant Buddy Struckman appeals the Hamilton County Common Pleas Court’s judgment dismissing his petition under R.C. 2953.21 et seq. for relief from his 2018 convictions. We affirm the court’s judgment.
Struckman was convicted in 2018 of two counts of unlawful possession of a dangerous ordnance, specifically an automatic firearm and suppressor. He unsuccessfully challenged his convictions on direct appeal, State v. Struckman, 1st Dist. Hamilton No. C-180287, 2020-Ohio0-1232, appeal not accepted, 159 Ohio St.3d 1446, 2020-Ohio-3712, 149 N.E.3d 523, and in a postconviction motion filed in 2020. See State v. Struckman, 1st Dist. Hamilton No. C-200069, 2021-Ohio-1043, appeal not accepted, 165 Ohio St.3d 1456, 2021-Ohio-4033, 176 N.E.3d 759.
{¶3} In this 2021 postconviction petition, Struckman seeks relief from his convictions, arguing that the state had either suppressed exculpatory evidence and/or knowingly misrepresented facts to the jury, and thus, violated his right to a fair trial. Specifically, Struckman contends that the contraband discovered during the search of the home located at 622 Maple Street led to a complaint against him in municipal court for possession of marijuana and drug paraphernalia and to a felony indictment for two counts of unlawful possession of a dangerous ordnance in the common pleas court. Although Struckman knew he had been acquitted of the drug charges following a bench trial, he maintains that he just recently discovered the reason for his acquittal, which was the municipal court’s finding that “other people may have had access to the area where the drugs were found.” Struckman claims that the state suppressed, at his felony trial, the fact that he had been acquitted of possession of marijuana and the basis for his acquittal as well a police report which documented officers observing other people in and out of 622 Maple Street in August 2016.

         The common pleas court lacked subject-matter jurisdiction to entertain defendant’s successive petition for postconviction relief under R.C. 2953.23(A), because defendant’s claims failed to satisfy the statutory exceptions for successive petitions under R.C. 2953.23(A)(1), where the claims were based on evidence that defendant was not unavoidably prevented from discovering prior to or during his trial.
JUDGMENT: AFFIRMED

08/12/2022
Jacqueline Winbush v. Cincinnati Music Festival, et al., City of Cincinnati, Cincinnati Park Board and Urban Forestry, Cincinnati Board of Park Commissioners
C-210652
Quote from Judge Myers:
Winbush suffered serious injury after falling in a hole in a sidewalk in downtown Cincinnati. She filed a complaint against multiple defendants, including, as relevant to this appeal, the city defendants, seeking to recover for her injuries. Winbush’s complaint alleged that she fell into the hole while walking on a sidewalk on Elm Street near Paul Brown Stadium, where she planned to attend an event called The Cincinnati Music Festival. Winbush alleged that she was unable to see the hole because of the dense crowd of people who were also on their way to the music festival.
The complaint alleged that the hole into which Winbush fell had been intended for the placement of a tree but was empty at the time of her fall. Whereas similar holes in the city’s sidewalks contained two steel gratings placed to form a circle around the tree, the two gratings on the treeless hole at issue were reversed, resulting in two semicircular holes in the ground.

The trial court did not err in granting the Civ.R. 12(B)(6) motion to dismiss where defendant, a political subdivision, was entitled to a general grant of immunity under R.C. 2744.02(A)(1) because its actions that allegedly caused the plaintiff’s injury were done in connection with a governmental function, and no exception set forth in R.C. 2744.02(B) applied to remove that grant of immunity. 
JUDGMENT:  Affirmed

08/12/2022
Forsythe Finance, LLC v. Richard Seibert v. Bastion Funding OH I, LLC, SunUp Financial, LLC
C-210626
Quote from Judge Bergeron:
Some lenders explore creative ways to try to charge excessive interest rates, often in a cat and mouse game with the legislature that endeavors to proscribe such efforts. These cases involved such an example, with a lender—prohibited from making certain loans directly—partnering with a third party to provide loans that require Ohio individuals to repay three times what they borrowed.
Before launching into the facts at hand, we provide some context on the regulatory framework at play here. The version of the Ohio Mortgage Loan Act (“MLA”) governing the transactions at issue required mortgage lenders and brokers to register with Ohio’s Division of Financial Institutions (“DFI”) before making certain loans. In exchange for becoming a registrant, lenders received the ability to conduct activities connected with residential mortgage loans other than first-lien loans. Registrants could advertise, solicit, and hold out that they were validly engaged in the business of providing residential mortgage loans. They could collect mortgage payments for themselves and on behalf of others. They could employ and compensate mortgage loan originators. And in the quirk directly implicating this case, they could offer unsecured loans (or loans secured by something other than real property) with unlimited interest rates, provided the loan amounts fell below $5,000.

           The trial court erred in granting third-party defendant’s Civ.R. 12(B)(6) motion to dismiss for failure to state a claim where third-party plaintiff borrowers pled sufficient facts that, if proved, would entitle them to relief under the Ohio Mortgage Loan Act, the Ohio Consumer Sales Practices Act, and/or the Ohio Credit Services Organization Act.
JUDGMENT:  REVERSED AND CAUSE REMANDED

08/12/2022
State of Ohio v. George Davis
C-210538, C-210539
Quote from Judge Myers:
In the case numbered B-2004898, Davis was indicted for murder, felony murder, felonious assault, aggravated robbery, and having a weapon while under a disability for his role in the death of Mohamed Ndiaye. With the exception of the offense of having a weapon while under a disability, all charged offenses carried two accompanying firearm specifications. In the case numbered B2002302A, Davis was indicted for two counts of promoting prostitution.
The cases were tried together in a bench trial, where testimony established that officers were dispatched to 302 South Wayne Avenue in Lockland for reports of a shooting at approximately 2:30 a.m. on May 10, 2020. The responding officers found Ndiaye lying face down on his driveway. He had suffered gunshot wounds to his torso, left arm, and right thigh. Ndiaye was unresponsive at the time the officers arrived, and he died shortly thereafter. Neighbors who had gathered outside told the officers that two suspects had fled from the scene and were seen leaving in a vehicle described as a dark-colored Dodge Dart.

Where the offenses of murder and aggravated robbery were committed with a separate animus, the trial court did not err in imposing separate sentences for each offense pursuant to R.C. 2941.25.     
Defendant’s convictions for felony murder and aggravated robbery were supported by sufficient evidence and were not against the manifest weight of the evidence where the evidence showed that defendant planned to rob the victim, approached the victim with a firearm and demanded money, and shot the victim when the victim reached for his own weapon and where the trial court specifically stated that defendant’s account of the events and defendant’s alibi witness were not credible.
JUDGMENTS: Affirmed AND REMANDED IN C-210539; APPEAL DISMISSED IN C-210538

08/12/2022
State of Ohio v. Jamie Toran
C-210431
Quote from Judge Myers:
Defendant-appellant Jamie Toran was arrested and charged with carrying a concealed weapon, improper handling of a firearm in a motor vehicle, and having a weapon while under a disability after police conducted a warrantless search of a vehicle during a traffic stop and found a loaded revolver in the interior panel of the passenger door. Toran filed a motion to suppress the evidence obtained during the traffic stop, and the trial court overruled the motion after a hearing. Following Toran’s pleas of no contest, the trial court found Toran guilty of the charges and sentenced him to five years of community control. Toran now appeals.
Although the traffic stop was proper, because the search of the vehicle
was not justified under an exception to the Fourth Amendment’s warrant
requirement, we hold that the trial court erred in denying the motion to suppress,
and we reverse the judgment of the trial court.

The traffic stop of defendant was constitutionally valid where the deputy not only had a reasonable articulable suspicion to stop defendant, but also had probable cause to believe that defendant committed a violation of former R.C. 4503.21(A)(3) by failing to display the temporary license placard in plain view from the rear of the vehicle. 
The trial court erred by failing to suppress the evidence seized during a warrantless search of a vehicle where the state failed to meet its burden to demonstrate that an exception to the Fourth Amendment’s warrant requirement allowed the search, because the state presented insufficient evidence to demonstrate that an inventory search was made in accordance with standardized police procedures.
JUDGMENT: REVERSED AND CAUSE REMANDED