Friday First District Roundup

No Jokes here – April 1, 2022

Next week, Hamilton County Law Library will be celebrating National Library Week with a fun theme each day. Stop in for some sweet or salty treats throughout the week. Let us know how we are doing on a star, and read up on our last year's accomplishments. Next week at the Library!

Henderson vs. M. DeWine, et. al
Quote from Judge Myers:
Jerome Henderson appeals the trial court’s entry granting defendantappellee Shirley Adele Shank’s motion to dismiss his 42 U.S.C. 1983 (“Section 1983”) civil-rights action. He challenges the trial court’s dismissal of his complaint as well as the trial court’s denial of his motion for leave to file an amended complaint. Finding no merit to Henderson’s arguments, we affirm the trial court’s judgment.
Henderson, who was convicted of aggravated murder and sentenced to death, filed a Section 1983 action against Shank, as well as against Mike DeWine, Governor of Ohio, Annette Chambers-Smith, Director of the Ohio Department of Rehabilitation and Correction (“ODRC”), Stephen Gray, Chief Counsel for ODRC, Ronald Erdos, Warden of the Southern Ohio Correctional Facility, and David Stebbins, former counsel for Henderson. Service was never obtained on Stebbins. The complaint alleged that Shank, the only appellee to this appeal, violated Henderson’s civil rights with respect to her representation of him in state clemency and other proceedings.

A private attorney appointed to represent an indigent defendant does not act under color of state law for purposes of a 42 U.S.C. 1983 civil-rights action.   

In Re: D.V. and J.A.

Quote from Judge Bock:
In these consolidated appeals, appellants mother and father challenge the juvenile court’s judgment granting permanent custody of D.V. and J.A. to the Hamilton County Department of Job and Family Services (“HCJFS”). For the following reasons, we reverse the juvenile court’s judgment with respect to mother in the appeal numbered C-210624 and remand that case to the juvenile court for proceedings consistent with this opinion. We affirm the juvenile court’s termination of father’s parental rights in the appeal numbered C-210580.
Mother is the biological mother of J.A.1 In September 2017, mother gave birth to father’s son, D.V. Days before D.V.’s birth, father was arrested and charged with aggravated menacing in violation of R.C. 2903.21, and assault in violation of R.C. 2903.13. The charges were later dismissed. In October 2017, HCJFS filed a complaint for temporary custody of J.A. and D.V. The complaint alleged that the children were dependent under R.C. 2151.04. As the case was pending in the juvenile court, father was arrested in December 2019 and charged with domestic violence under R.C. 2919.25. Mother was granted a domestic-violence protection order against father. Ultimately, the charge and order were dismissed.

The juvenile court erred in determining that the termination of appellant mother’s parental rights were in the best interest of the children where it did not consider the wishes of the child under R.C. 2951.414(D)(1)(b).
The juvenile court did not err in determining that the termination of appellant father’s parental rights was in the best interest of the child where father had a history of perpetrating domestic violence and provided inconsistent testimony to the juvenile court.

Helton v. Fifth Third Bank
Quote from Judge Myers:
This is the second appeal in a lawsuit filed against defendant-appellee Fifth Third Bank (“Fifth Third”) by plaintiffs-appellants Helen Clarke Helton, Catherine T. Clarke, James W. Clarke, Mary Zigo, and Bridget Murphy (collectively referred to as “the Clarke siblings”) concerning Fifth Third’s management of two trusts of which the Clarke siblings are beneficiaries.

In this appeal, we consider the propriety of the trial court’s grant of summary judgment to Fifth Third on the Clarke siblings’ remaining claim for unjust enrichment. Because the law-of-the case doctrine did not prohibit the trial court from considering a second motion for summary judgment following a remand from this court, and because the Clarke siblings have not conferred a benefit on Fifth Third, a necessary element for a claim of unjust enrichment, we affirm the trial
court’s grant of summary judgment to Fifth Third.
The law-of-the-case doctrine did not bar the trial court from reentering summary judgment in favor of defendant trustee on plaintiffs’ claim for unjust enrichment after the appellate court’s reversal of the trial court’s prior entry of summary judgment on that claim where the record was expanded following remand and where the legal basis for granting summary judgment was not raised in the first motion for summary judgment or in the first appeal before the appellate court. 
Where plaintiffs conferred no benefit on defendant, the trial court did not err in granting summary judgment to defendant on plaintiffs’ claim for unjust enrichment.

D. Setters & C. Setters vs. A.A. Durrani & The Center for Advanced Spine Technologies, Inc.
Quote from Judge Crouse:
This case has returned to this court upon the appeal of plaintiffsappellants Dana and Craig Setters and the cross-appeal filed by defendants-appellees Abubaker Atiq Durrani, M.D., and The Center for Advanced Spine Technologies, Inc., (“CAST”). Both the appeal and the cross-appeal concern the trial court’s judgment following this court’s remand in Setters v. Durrani, 2020-Ohio-6859, 164 N.E.3d 1159 (1st Dist.) (“Setters I”).
In Setters I, defendants appealed the jury verdict in favor of plaintiffs on their claims for negligence, lack of informed consent, and loss of consortium, and its award of $849,906 in damages. This court held that, pursuant to R.C. 2307.28, defendants were entitled to a “setoff” of the pretrial settlement between plaintiffs and West Chester Hospital (“WCH”) and UC Health against the damages award. Id. at 70.

The trial court lacked jurisdiction to issue a judgment entry reducing the damages award while defendants’ notice of appeal was pending before the Ohio Supreme Court because the trial court’s action was inconsistent with the Ohio Supreme Court’s jurisdiction to affirm, modify, or reverse the judgment appealed.

The trial court’s procedure for determining the proper amount of setoff failed to comport with due process or the adversarial nature of the legal system because the court accepted the amount provided by plaintiffs’ counsel and counsel for the settling defendants without independently verifying its accuracy or allowing the nonsettling defendants to test its accuracy.

Thomas E. Brinkman, Jr. vs. City of Cincinnati, et. al
Quote from Judge Zayas:
These consolidated appeals arise from a taxpayer action instituted by relator, Thomas E. Brinkman, against respondents, the city of Cincinnati and the then solicitor for the city acting in her official capacity, collectively referred to as “the city.” Brinkman sought to enjoin an alleged abuse of corporate powers that began when the solicitor filed a civil action against the state of Ohio on behalf of the city and its mayor without obtaining Cincinnati City Council’s approval. Brinkman also sought a declaration that the solicitor lacked the authority to file any civil action on behalf of the city and its officials without prior authorization by council. The trial court granted the requested injunctive relief but refused to grant declaratory relief. In the first appeal, numbered C-210343, the city1 appeals the part of the order granting injunctive relief, which if not reversed prevents the city from continuing its lawsuit against the state. In the second appeal, numbered C-210353, Brinkman appeals the part of the order denying his claim for declaratory relief. Because Cincinnati’s charter (also referred to as “the city’s charter” or “the Charter”) allows the solicitor to file a civil action on behalf of the city and its officials without prior authorization of council, we hold the trial court erred by granting injunctive relief. In all other respects, we affirm the trial court’s judgment.

 In a taxpayer action alleging an abuse of municipal corporate powers, the trial court erred by granting injunctive relief that prevents the city from continuing with a civil lawsuit instituted by its solicitor without prior authorization by city council, because the city’s charter allows the solicitor to file a civil action on behalf of the city and its officials without such prior authorization.
Where the taxpayer failed to demonstrate an abuse of municipal corporate power in his pursuit of injunctive relief, any error by the trial court in concluding the taxpayer lacked standing to obtain declaratory relief was harmless.

State of Ohio vs. Regina A. Collins
Quote from Judge Zayas:
Regina A. Collins appeals the trial court’s judgment finding Collins incompetent to stand trial and ordering her to undergo treatment at Summit Behavioral Services. We reverse the trial court’s judgment because the Court Clinic report on competency relied on by the court was not properly admitted into evidence, and therefore, there was not sufficient evidence to overcome the presumption of competence.
On October 27, 2020, Regina A. Collins was indicted for theft from a person in a protected class and unauthorized use of property, both felonies of the second degree. Collins entered not-guilty pleas in mid-November. In December, the case was continued for a plea or trial setting at Collins’s request to January 11, 2021. On January 12, the case was continued at Collins’s request for a report on hospital subpoenas previously filed by Collins. Both attorneys agreed to the continuance per
telephone consent.
The following day, an entry appointing the Court Clinic for a psychiatric exam of Collins was journalized. The entry stated “the Court, being fully advised, is of the opinion that psychiatric examination is necessary to assist the Court in determining the proper disposition of the case.” A competency report was submitted by the Court Clinic concluding that Collins was incompetent. Collins filed a motion seeking an additional evaluation.
The trial court erred in finding defendant incompetent because the Court Clinic report relied on by the court was not properly admitted into evidence, and therefore, there was not sufficient evidence to overcome the presumption of competence.

City of Cincinnati vs. Steven M. Rennick, Sr. & Phyllis Rennick
Quote from Judge Bergeron:
The Ohio Political Subdivision Tort Liability Act grants statutory immunity against damages incurred in the performance of governmental and proprietary functions, subject to certain exceptions. The exception at issue before us involves damages caused by the negligence of the political subdivision’s employees with respect to proprietary functions. Defendants appellees Steve and Phyllis Rennick (the “Rennicks”) contend that plaintiff-appellant the city of Cincinnati (“city”) failed to adequately maintain a sewer system, a proprietary function which they believe negates immunity. For its part, the city frames the issue as arising out of the construction and design of the sewage system, governmental tasks shielded by sovereign immunity. Because the record here (essentially limited to the complaint) is not developed enough for us to determine whether the challenged functions fall on the governmental or proprietary side of the line, we affirm the trial court’s denial of the city’s motion for judgment on the pleadings because the alleged facts plausibly suggest a proprietary function.
Where the face of the complaint does not conclusively establish that the activity in question was of a governmental nature, thus entitling the city to immunity, the trial court did not err in denying the city’s motion for judgment on the pleadings.

State of Ohio vs. Colerain Township, et. al
Quote from Judge Bergeron:
Respondents-appellants Colerain Township, the Colerain Township Trustees at the time in question, Raj Rajagopal, Dan Unger, and Greg Insco, as well as the Comprehensive Plan Land Use Committee, and its members, Mike Ionna, Gary Henson, Rose Spiecher, Amanda Beckman, Mark Fehring and Craig Abercrombie, appeal the decision of the Hamilton County Court of Common Pleas finding that they had violated the Open Meetings Act and granting a motion for summary judgment filed by relators-appellees Kathy Mohr and Stephanie Wright. We find no merit in respondents’ sole assignment of error, and we affirm the trial
court’s judgment.