Friday First District Roundup 1-2-20

Each Friday, we highlight decisions of the First District Court of Appeals in the past week. For question about these cases, contact Vanessa Seeger.

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R. David Scott, Missy Scott v. Abubakar Atiq Durrani, M.D., Center for Advanced Spine Technologies, West Chester Hospital, LLC, UC Health, LLC
Case #C180641

Quote from Judge Bergeron's Opinion:

In this collection of appeals, consolidated for opinion purposes, we apply our recent decisions in Freeman v. Durrani, 1st Dist. Hamilton No. C-180197, 2019-Ohio-3643, and Wilson v. Durrani, 1st Dist. Hamilton Nos. C-180196 and C180194, 2019-Ohio-3880, to resolve similar issues stemming from alleged pervasive malpractice committed by Dr. Abubakar Atiq Durrani. Both sides, to varying degrees, urge us to retreat from these decisions on which the ink is still drying. We resist those invitations, and find the outcome in these appeals largely dictated by our recent precedent. For the reasons explained below, we affirm dismissals in the Arnold and McNeal appeals because the initial suits were commenced outside of the window for the four-year statute of repose, but reverse dismissal in the Scott appeal because the initial complaint was filed within the statute of repose and Ohio’s “savings statute” saved the subsequent complaint.

State of Ohio v. Maurice Smith
Case # C180604

Quote from Judge Bergeron' Opinion:

This pair of appeals traces back to defendant-appellant Maurice Smith’s 2016 convictions, where a jury found him guilty of burglary, various drugrelated offenses, and tampering with evidence. On direct appeal, we affirmed his convictions but remanded for resentencing to address an allied offenses issue. See State v. Smith, 2017-Ohio-8558, 99 N.E.3d 1230 (1st Dist.). During the course of our opinion, we specifically rejected his argument that the trial court erred in failing to address his pro se motions (because counsel represented him). In the wake of our decision, Mr. Smith filed three motions relevant to this appeal, a petition for postconviction relief (with a request for an evidentiary hearing), a motion for leave to file a motion for a new trial, and a motion for a new trial, largely raising issues that we already decided in the direct appeal and without offering any material evidence beyond that before the court at the time of trial. The trial court denied relief, and we affirm its judgments for the reasons explained below.

State of Ohio v. City of Cincinnati, Citizen Complaint Authority, Cincinnati Black United Front
Case #C180510

Quote from Judge Bergeron's Opinion:

Designed to foster more trust and cooperation between the police and public than had previously prevailed, the Collaborative Agreement has played an instrumental role in this community for the better part of two decades. Consistent with the mandate of a federal lawsuit, Cincinnati’s City Council approved the Collaborative Agreement and gave the Citizen Complaint Authority (“CCA”) the force of law, by promulgating it into the city’s Administrative Code. The CCA exists as a key check instilled by the Collaborative Agreement, as it conducts an independent investigation of (among other things) uses of force by police officers.

The present case stems from an effort by the state of Ohio to enjoin the investigatory work of the CCA during the pendency of any related felony criminal case. The trial court granted a permanent, and sweeping, injunction, but it did so while skipping a critical step in the injunction analysis–it never determined that the state had prevailed on its claim. A party cannot secure a permanent injunction without winning the underlying lawsuit. Equally important, the state failed to adduce clear and convincing evidence of irreparable harm on the record below. Instead, the harm posited by the state was inherently speculative because its only witness knew nothing about the factual situation surrounding the controversy that precipitated the injunction request.

State of Ohio v. Monika Enriquez Burgett
Case # C180029

Quote from Judge Mock's Opinion:

After a jury heard testimony that Monika Burgett mispresented symptoms her young son was allegedly experiencing causing doctors to provide unnecessary treatment and that she misrepresented, on the crowdfunding website, GoFundMe, that her son suffered from a terminal illness, had a brain tumor and no longer had medical insurance, a jury found her guilty of child endangering in violation of R.C. 2919.22(A), a first-degree misdemeanor, and telecommunications fraud in violation of R.C. 2913.05(A), a third-degree felony. The trial court sentenced her to five years of community control, with mandatory psychotherapy treatment and restricted travel outside of Ohio. The court also ordered her “to make restitution in the amount of $26,381 to Go Fund Me through the probation department.”

Burgett now appeals, challenging both convictions and the award of restitution.

State of Ohio v. Andrew Lavender
Case #C180003

Quote from Judge Mock's Opinion:

In eight assignments of error, defendant-appellant Andrew Lavender claims that he was improperly convicted of aggravated murder and sentenced to life in prison without the possibility of parole. For the reasons set forth below, we disagree with those assertions and affirm the judgment of the trial court.

State of Ohio, Ex Rel. Delta Lookout, LLC, Delev and Associates, LLC v. City of Cincinnati, Jon Cranley, Mayor of The City of Cincinnati, Harry Black, City Manager of The City of Cincinnati, Michael Moore, Director of Transportation and Engineering for The City of Cincinnati
Case #C170107

Quote from Judge Zayas's Opinion:

Relators Delta Lookout, LLC, and Delev and Associates, LLC, filed a petition for a writ of mandamus as an original action in this court seeking an order to compel respondent city of Cincinnati to repair and maintain two streets within the city boundary. For the following reasons, we decline to issue the writ.