Friday First District Roundup 5-29-20

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

Interested in getting these weekly updates sent right to your inbox? Sign up here!

In re: A.H.
Case #C200086

Quote from Judge Zayas' Opinion:

Appellants, S.W. (“Mother”) and A.H. (“Father”), separately appeal from the judgment of the Hamilton County Juvenile Court granting permanent custody of their daughter, A.H., to the Hamilton County Department of Job and Family Services (“HCJFS”). For the following reasons, we affirm.

A.H. was born on November 20, 2018, and was found to have acquired a life-threatening illness in utero from her Mother, which required immediate intervention and ongoing treatment.

Shortly after A.H.’s birth, HCJFS received a report through 241-KIDS, Hamilton County’s hotline to report suspected cases of child abuse or neglect, because Mother had lost custody of her other two children as a result of neglect and dependency.

In re: Z.W.
Case #C200061

Quote from Judge Bergeron's Opinion:

In this permanent custody case, the juvenile court ordered the termination of Mother’s parental rights based on a chronic history of substance abuse and mental health problems, which contributed to the termination of rights over her other children. Conducting our independent review, we find that clear and convincing evidence supports the juvenile court’s decision, and we accordingly affirm.

In January 2019, Mother gave birth to Z.W., but the Hamilton County Department of Job and Family Services (“HCJFS”) quickly became involved after both Mother and Z.W. tested positive for oxycodone. Based in part on this positive test, and in part over concerns regarding Mother’s history with substance abuse, mental health issues, and involuntary termination of her rights as to her four other children, HCJFS opened a case, requesting an ex parte emergency grant of custody of Z.W, which the court granted. HCJFS later filed an amended custody complaint requesting permanent custody of Z.W., who was eventually adjudicated abused, neglected, and dependent.

Luigi Berardo, Tina Berardo v. Devin Q. Felderman-Swearingen, Humana, Progressive Specialty Insurance Company
Case #C190515

Quote from Judge Myers' Opinion:

Luigi and Tina Berardo appeal the judgment of the Hamilton County Court of Common Pleas denying their post-trial motion for judgment notwithstanding the verdict, additur or, in the alternative, a new trial on damages. However, because we have no jurisdiction to entertain the appeal, we dismiss it.

In December 2015, the Berardos were injured in a car accident when a car driven by Devin Q. Felderman-Swearingen collided with their car. The Berardos were insured under an automobile liability policy with Progressive Specialty Insurance Company (“Progressive”), which provided uninsured/underinsuredmotorist coverage and medical-payments coverage. Progressive paid medical bills on behalf of both Luigi and Tina Berardo for treatment of their injuries sustained in the accident. Luigi Berardo was insured under an individual health insurance policy through Humana, which paid medical bills for the treatment of his injuries

State of Ohio v. Willadean Branam
Case #C190353

Quote from Judge Myers' Opinion:
The state of Ohio appeals the judgments of the Hamilton County Municipal Court dismissing five charges against Willadean Branam as a sanction for the state’s failure to provide a video in discovery. Because the trial court abused its discretion by failing to consider the appropriate factors before imposing dismissal as a sanction for the discovery violation, we reverse.

On January 1, 2019, Branam was charged with obstructing official business, spitting in a public place, possession of marijuana, leaving a curb without proper signaling, and a license-plate violation. On January 29, Branam filed a demand for discovery.

In its written response filed on February 3, the state provided all that Branam had requested except for videos captured by police body-worn cameras (“BWC”) and from mobile video recorders (“MVR”) in police cruisers. The state indicated that “BWC video will be forwarded upon receipt” and “MVR Video ordered, will forward upon receipt, if available.”

Audra Spurgeon, Richard Spurgeon v. Mercy Health-Anderson Hospital, LLC, Cincinnati Children's Hospital Medical Center, et al.
Case #C190271

Quote from Judge Winkler's Opinion:

Defendant-appellant Mercy Health—Anderson Hospital, LLC, (“Mercy”) appeals the decision of the Hamilton County Court of Common Pleas ordering it to turn over documents to plaintiffs-appellees Audra and Richard Spurgeon that it claimed were confidential under the peer-review privilege. We find no merit in Mercy’s sole assignment of error, and we affirm the trial court’s judgment.

The record shows that the Spurgeons individually, and as the parents of Blake Spurgeon, filed a medical-malpractice action against Mercy and several other defendants. They alleged that Mercy’s nurses, physicians, and other health care providers failed to properly diagnose and treat their newborn son’s case of severe meningitis, causing him to suffer permanent brain damage.

During discovery, the Spurgeons attempted to obtain the complete employee files of several nurses employed by Mercy. Mercy refused to provide them, claiming that they were confidential under the peer-review privilege. Consequently, the Spurgeons filed a motion to compel discovery. In response, Mercy filed a motion for a protective order.

State of Ohio v. Earl Flower, Jr.
Case #C190228

Quote from Judgment Entry:

Defendant-appellant Earl Flower, Jr., appeals convictions from the Hamilton County Municipal Court. The genesis of these convictions lies with an incident that transpired between Mr. Flower and his uncle, Steve Howe, after Mr. Howe told Mr. Flower to vacate premises owned by Mr. Howe and occupied by Mr. Flower’s grandmother. According to Mr. Howe and another witness, this prompted Mr. Flower to yank a nearby yard sign out of the ground and begin brandishing and swinging its metal stake “[w]thin inches” of Mr. Howe’s face, as Mr. Flower uttered threatening remarks.

State of Ohio v. Steven Allen Craig
Case #C160816

Quote from Judge Myers' Opinion:

This case returns to us from the Supreme Court of Ohio after a unique set of circumstances. Even though his original conviction was not final and appealable, defendant-appellant Steven Allen Craig has been found incompetent to stand trial since this case was last before us, rendering his conviction final. We now consider the merits of his appeal.

Craig was indicted on one count of rape and two counts of felonious assault, all involving the same victim. A jury found Craig guilty of the feloniousassault counts, but it was unable to reach a verdict on the rape count. The trial court imposed concurrent seven-year prison sentences on the felonious-assault counts. The court declared a mistrial on the rape count, and that count remained pending.

Craig attempted to appeal his felonious-assault convictions to this court, but we dismissed his appeal for lack jurisdiction, holding that the trial court’s failure to dispose of the rape count on which the jury failed to reach a verdict prevented the judgment of conviction on the other counts from being final and appealable. State v. Craig, 2017-Ohio-8962, 101 N.E.3d 650, ¶ 12 (1st Dist). Craig appealed our decision to the Supreme Court of Ohio. While that appeal was pending, the trial court found Craig incompetent to stand trial on the remaining count.

State of Ohio v. Paul Adams
Case #C190437

Quote from Judgment Entry:

Defendant-appellant Paul Adams appeals the Hamilton County Common Pleas Court’s judgment overruling his “Motion to Vacate Void Judgment.” We dismiss the appeal for lack of jurisdiction. Adams was convicted in 2011 upon jury verdicts finding him guilty of aggravated burglary and two counts of aggravated robbery and was sentenced to consecutive prison terms totaling 21 years. We affirmed his convictions on direct appeal. State v. Adams, 1st Dist. Hamilton No. C-120059, 2013-Ohio-926, delayed appeal denied, 136 Ohio St.3d 1472, 2013-Ohio-3790, 993 N.E.2d 777.