Friday First District Roundup 12/20/19

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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State of Ohio v. John Deloney
Case #C190372

Quote from Judge Mock's Opinion:

Defendant-appellant John Deloney has filed an interlocutory appeal from the decision of the Hamilton County Court of Common Pleas denying his motion to preclude the death penalty as a sentencing option on double-jeopardy grounds. We find no merit in Deloney’s sole assignment of error, and we affirm the trial court’s judgment.

State of Ohio v. John Hopkins
Case # C190005

Quote from Judgment Entry:

Defendant-appellant’s appointed counsel has advised this court that, after a thorough review of the record, he can find nothing that would arguably support appellant’s appeal, and that the appeal is wholly frivolous. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); see also Freels v. Hills, 843 F.2d 958 (6th Cir.1988). Counsel, as required by Anders, has communicated this conclusion to appellant, and has offered appellant an opportunity to respond and to raise any issues. Counsel has also moved this court for permission to withdraw as counsel. See Anders at 744; see also 1st Dist. Loc.R. 16.2(C)(1) and 16.2(D)(2).

M. Aaron Taylor v. Stacey Barleston
Case #C180704

Quote from Judgment Entry:

Plaintiff-appellant M. Aaron Taylor appeals from the trial court’s judgment awarding damages and attorney fees to defendant-appellee Stacey Barleston arising from their landlord-tenant dispute. In four assignments of error, Taylor argues that (1) the award of damages in favor of Barleston violated R.C. 5321.16, (2) the award of attorney fees to Barleston violated R.C. 5321.16, (3) the amount of attorney fees awarded was unreasonable, and (4) the trial court erred by denying Taylor’s motion for summary judgment.

Barleston rented an apartment from Taylor with the help of the Cincinnati Metropolitan Housing Authority (“CMHA”). Shortly after moving in, Barleston informed Taylor that several things in her apartment did not work and needed repair—the refrigerator, the toilet, and the electricity in the bathroom. CMHA OHIO inspected the apartment on August 16, 2016, and directed Taylor to make the requested repairs.

In early September 2016, Taylor initiated an action against Barleston for (1) eviction due to nonpayment of rent, (2) recovery of unpaid rent, and (3) damages to the premises beyond normal wear and tear. Barleston brought six counterclaims: (1) failure to return the security deposit, (2) breach of contract, (3) negligence, (4) breach of duty imposed by law, (5) retaliatory eviction, and (6) order of repairs (injunctive relief requiring repairs be made before the premises can be rerented).

State of Ohio v. Donte Hill
Case # C180698

Quote from Judgment Entry:

Defendant-appellant’s appointed counsel has advised this court that, after a thorough review of the record, he can find nothing that would arguably support appellant’s appeal, and that the appeal is wholly frivolous. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); see also Freels v. Hills, 843 F.2d 958 (6th Cir.1988). Counsel, as required by Anders, has communicated this conclusion to appellant, and has offered appellant an opportunity to respond and to raise any issues. Counsel has also moved this court for permission to withdraw as counsel. See Anders at 744; see also 1st Dist. Loc.R. 16.2(C)(1) and 16.2(D)(2).

Kimberly R. Dalton v. Buten, Inc., d.b.a. Car-X
Case #C180671

Quote from Judgment Entry:

Plaintiff-appellant Kimberly Dalton appeals the trial court’s judgment entering summary judgment in favor of Buten, Inc., d.b.a. Car-X on her claim of negligence. We affirm the trial court’s judgment.

Dalton sued Car-X for negligence after she fell and injured her ankle on their property. Dalton, who possesses a handicap placard, arrived at Car-X in her roommate’s car (her car had been towed to Car-X) and noticed that both handicap parking spaces in front of Car-X’s entrance were occupied by automobiles that did not have a special license plate or a handicap placard displayed in the front window. Because both spaces were occupied, Dalton decided to park in an unmarked space near the store. When she exited from the vehicle, she stepped on a crumbling concrete curb and fell. She testified in her deposition that she did not look down at the ground before she exited from the car, but that if she had done so, she would have noticed the crumbling concrete and parked elsewhere.

U.S. Bank National Association as Trustee Successor in Interest to Bank of America, National Association as Trustee, Successor by Merger to LaSalle Bank National Association, as Trustee for Structured Asset Investment Loan Trust Mortgage Pass-Through Certificates, Series 2004-8 v. Walter G. Broadnax, Jr., Jane Doe, name unknown, Spouse of Walter G. Broadnax, Jr., United States of America, Attorney General, U.S. Department of Justice, United States of America, U.S. Attorney (Cinti), Champion Windows Manufacturing & Supply Co., State of Ohio, Department of Taxation, Ohio Attorney General Revenue Recovery, State of Ohio, Bureau of Workers' Compensation, Ohio Attorney General Revenue Recovery Section
Case #C180650

Quote from Judge Bergeron's Opinion:

In this foreclosure action, the parties devote most of their briefing attention on appeal to issues that were never broached with the trial court below. Resisting the temptation to wade into this thicket, we instead confine ourselves to the arguments properly preserved in the record. We ultimately find the defendant’s statute of limitations argument meritorious, as the bank waited for too long to commence this suit after accelerating the loan (granted, there were some twists and turns along the way, which we describe below). We accordingly reverse summary judgment in favor of the bank and remand with instructions to enter judgment for the defendant.

State of Ohio v. Shawnay Glover
Case # C180572

Quote from Judge Zayas' Opinion:

Shawnay Glover appeals her conviction, after a jury trial, for assault. In three assignments of error, Glover contends that the trial court improperly required her to prove self-defense, that her conviction is based on insufficient evidence, and that her conviction is against the manifest weight of the evidence. Finding her assignments of error without merit, we affirm the trial court’s judgment.

State of Ohio v. Ireese Kennedy
Case # C180534

Quote from Judgment Entry:

Defendant-appellant’s appointed counsel has advised this court that, after a thorough review of the record, he can find nothing that would arguably support appellant’s appeal, and that the appeal is wholly frivolous. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); see also Freels v. Hills, 843 F.2d 958 (6th Cir.1988). Counsel, as required by Anders, has communicated this conclusion to appellant, and has offered appellant an opportunity to respond and to raise any issues. Counsel has also moved this court for permission to withdraw as counsel. See Anders at 744; see also 1st Dist. Loc.R. 16.2(C)(1) and 16.2(D)(2).

Julie C. Gregory, n.k.a. Julie O'Neill v. David S. Gregory
Case #C180444

Quote from Judge Crouse's Opinion:

The use of a parenting coordinator is a relatively new concept in Ohio and Hamilton County. Parenting coordination is a novel and innovative way to manage high-conflict divorce cases by promoting communication between the parties and resolving ancillary parenting issues outside of the courtroom. Nevertheless, a balance must be struck between fulfilling the purposes of parenting coordination and protecting the due-process rights of the parties.

In one assignment of error, David Gregory (“Father”) argues that the trial court erred as a matter of law in overruling his objections to the parenting coordinator’s decision in favor of Julie O’Neill (“Mother”). He presents two issues for review: (1) the trial court erred as a matter of law by overruling his objections without a hearing in violation of his due-process rights; and (2) the court’s judgment overruling his objections was against the manifest weight of the evidence. Since we reverse the trial court’s judgment and remand the cause on the basis of the dueprocess claim, we do not reach the question of whether the trial court’s decision was against the manifest weight of the evidence.

State of Ohio v. Chadwick Barnthouse
Case #C180286

Quote from Judge Bergeron's Opinion:

Looking to replace several windows in their home, Donald and Rita Stopler, via a chain of referrals, contacted defendant-appellant Chadwick Barnthouse in November 2014. He provided the Stoplers with a favorable estimate, which convinced them to enter into a contract with him for the job, and consistent with their agreement, the Stoplers handed him a check for several thousand dollars. Unfortunately, Mr. Barnthouse never performed his end of the bargain, nor did he return all of the money. Eventually convicted for theft, Mr. Barnthouse now appeals, challenging his conviction on weight and sufficiency grounds. Our review of the record, however, convinces us that the jury had before it sufficient and credible evidence upon which to convict him. We accordingly affirm his conviction.

Helen Clarke Helton, Catherine T. Clarke, James W. Clarke, Mary Zigo, Bridget Murphy v. Fifth Third Bank
Case #C180284

Quote from Judge Myers' Opinion:

Plaintiffs-appellants Helen Clarke Helton, Catherine T. Clarke, James W. Clarke, Mary Zigo, and Bridget Murphy, (collectively referred to as “the Clarke siblings”) appeal from the trial court’s order granting summary judgment to defendant-appellee Fifth Third Bank on their complaint asserting various claims regarding Fifth Third’s management of two trusts of which they are beneficiaries.

Because the trial court correctly determined that the Clarke siblings’ claim for breach of the duty to diversify was barred by the applicable statute of limitations, and that their claims for breach of the duty of impartiality and breach of trust/fiduciary duty were in essence additional claims for breach of the duty to diversify that were filed outside of the limitations period, we affirm its grant of summary judgment on those claims. But because the Clarke siblings’ claim for unjust enrichment was supported by different allegations of misconduct than those supporting the claim for breach of the duty to diversify, we find that the trial court erred in determining that it stemmed from the alleged breach of the duty to diversify, and we reverse the trial court’s grant of summary judgment on that claim.