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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In re: G.W. and A.N.
Case #C190390

Quote from Judge Winkler's Opinion:

The Hamilton County Department of Job and Family Services (“HCJFS” or “agency”) and the guardian ad litem (“GAL”) for appellees’ minor children, G.W. and A.N., appeal the judgment of the Hamilton County Juvenile Court dismissing a complaint for temporary custody. The agency had sought custody on the grounds that G.W. and A.N., who had multiple, internal physical injuries, were abused, neglected and dependent. At the hearing on the agency’s motion, medical experts disagreed as to whether the children’s injuries were due to a medical condition or physical abuse. The evidence also showed that appellees had repeatedly taken the young children to medical appointments, at which no abuse was suspected. The juvenile court carefully weighed the evidence presented at the hearing, determined that the agency had failed to prove its case by clearand-convincing evidence, and dismissed the complaint.

On appeal, the appellants argue the decision must be reversed because the juvenile court failed to have the appellees’ expert witness sworn, and HCJFS presented competent and credible evidence of the allegations. For the reasons that follow, we affirm.

In re: The S. Children
Case #C190333

Quote from Judge Myers' Opinion:

These consolidated appeals present an issue of first impression in this district: whether a trial court may dismiss a child from a dependency, neglect, and abuse action solely because the child died before the action was filed. Because R.C. 2151.031 specifically provides for the adjudication of a deceased child as an abused child, we hold that the trial court erred in dismissing a child from the action in the case below solely because he was deceased, and we reverse and remand for further proceedings.

This case has a lengthy procedural history. In October 2016, the child that is the subject of this appeal, A.S., died from injuries allegedly inflicted at home while in his parents’ care. An autopsy was conducted, and A.S.’s death was ruled a homicide. Following A.S.’s death, the Hamilton County Department of Job and Family Services (“HCJFS”) filed a complaint seeking permanent custody of A.S. and his five siblings, K.S., C.S.1, M.S., N.S., and C.S.2.1 The complaint alleged that the children were abused, neglected, and dependent.

In re: S.D., R.D., J.D. and M.D.
Case #C200084

Quote from Judge Crouse's Opinion:

In this parental-termination case, the juvenile court overruled the magistrate’s decision and granted permanent custody of the minor children to the Hamilton County Department of Job and Family Services (“HCJFS”). The parents have appealed. Mother argues in one assignment of error that the juvenile court erred in granting HCJFS’s motion for permanent custody. Father argues in one assignment of error that HCJFS failed to establish, by clear-and-convincing evidence, that it should be granted permanent custody of the children.

We consider mother’s and father’s assignments of error together. Both assignments of error are sustained. The judgment of the juvenile court is reversed, and the cause is remanded with instructions to the juvenile court to issue a judgment entry adopting the magistrate’s decision awarding legal custody of the children to the parents with protective supervision of M.D. by HCJFS.

In re: Estate of Verna T. Smith
Case #C190407

Quote from Judge Zayas' Opinion:

Exceptor-appellant Kenneth Burger (“Kenneth”) appeals from the judgment of the Hamilton County Court of Common Pleas, Probate Division, denying his exceptions to the inventory filed in the estate of his mother, Verna T. Smith. On appeal, Kenneth argues that the trial court erred in determining the funds held in a joint checking account, a joint money market savings account, and a joint brokerage account by Smith and his brother and executor-appellee Ronald Burger (“Ronald”), would not be included in his mother’s probate estate.

Smith died testate on January 17, 2018. On February 5, 2018, the Hamilton County Probate Court assumed jurisdiction over her last will and testament, and Ronald was named executor. Ronald filed an inventory and schedule of assets, and Kenneth filed exceptions to the inventory and appraisal. On February 25, 2019, a hearing was held before the magistrate on the exceptions to the inventory.

Kenneth filed a pretrial statement, challenging the exclusion of a checking account, a money market savings account, and a brokerage account. At the time of Smith’s death, the checking account had a balance of $20,723.49, the balance in the money market savings account was $6,401.62, and the brokerage account had a final balance of $13,516.75

Lamar Advantage GP Company, LLC, d.b.a. Lamar Advertising of Cincinnati, OH, Norton Outdoor Advertising, Inc. v. City of Cincinnati, Ohio, Nicole Lee, Treasurer of the City of Cincinnati, Ohio, Art Dahlberg, Director of the Department of Buildings and Inspections for the City of Cincinnati, Ohio, Reginald Zeno, Finance Director for the City of Cincinnati, Ohio
Case #C180675

Quote from Judge Winkler's Opinion:

This appeal addresses the constitutionality of an excise tax placed on off-premises outdoor advertising signs, or billboards, within the city of Cincinnati. Two advertising companies, plaintiffs-appellees Lamar Advantage GP Company, LLC, d.b.a. Lamar Advertising of Cincinnati, OH, (“Lamar”) and Norton Outdoor Advertising, Inc., (“Norton”) filed suit against defendants-appellants the city of Cincinnati, Ohio, Nicole Lee, treasurer of the city of Cincinnati, Art Dahlberg, director of the department of buildings and inspections for the city of Cincinnati, and Reginald Zeno, finance director for the city of Cincinnati (collectively “the city”). Lamar and Norton challenged the constitutionality of the billboard tax and sought to preclude the city from enforcing the tax.

The trial court held that the city’s excise tax on billboards was unconstitutional and violated the First Amendment to the United States Constitution, and the trial court granted a permanent injunction barring the city from enforcing the tax. The city appeals the trial court’s decision. For the reasons that follow, we affirm that portion of the trial court’s decision holding that the city’s prohibition on communications between outdoor advertising hosts and their customers regarding the tax is unconstitutional. We reverse the remainder of the trial court’s decision holding the excise tax unconstitutional, and we remand for further proceedings.

In re: H&J Children
Case #C200115

Quote from Judge Myers' Opinion:

Paternal grandmother (“grandmother”) appeals from the trial court’s entry denying her motion for legal custody of her four grandchildren and granting permanent custody of the children to the Hamilton County Department of Job and Family Services (“HCJFS”). Because the trial court did not err in determining that a grant of permanent custody was in the children’s best interest, we affirm its judgment.

HCJFS filed a complaint for temporary custody of B.H., D.J., and N.J. in July 2017, asserting that they were neglected, dependent, and abused. 1 The complaint alleged that D.J., then two years old, was found wandering on a street alone, and that N.J., who was then one year old, was found home alone with a sixyear-old sibling and seven-year-old cousin. All three children were adjudicated dependent, D.J. and N.J. were additionally adjudicated abused and neglected, and the children were placed in the temporary custody of HCJFS.

Grant Christopher Hammond v. Brenda Kay Hammond, n.k.a. Brenda Kay Larson
Case #C190376

Quote from Judge Winkler's Opinion:

Plaintiff-appellant Grant C. Hammond appeals from the order of the Hamilton County Court of Common Pleas, Domestic Relations Division, finding him in contempt. Because Hammond voluntarily purged the contempt finding, the appeal is moot.

The record shows that Hammond’s marriage to defendant-appellee Brenda K. Larson was terminated by a divorce decree entered in July 2012. In that decree, the court had named Larson as the sole residential and legal custodian of the parties’ two children, affording her the sole authority to determine the children’s schooling.

Larson moved for contempt in August 2017 because Hammond had enrolled the parties’ oldest child in a school located within his school district. He claimed he was authorized to register the child based on a letter he had allegedly received from the docket clerk of the domestic relations court. After an evidentiary hearing, the magistrate found Hammond in contempt, in violation of R.C. 2705.02(A), based on his “resistance” to the July 2012 divorce decree.

Cable Busters, LLC v. Karen Mosley
Case #C190364

Quote from Judge Crouse's Opinion:

Plaintiff-appellant Cable Busters, LLC, appeals from the trial court’s judgment ruling in favor of defendant-appellee Karen Mosley. For the reasons set forth below, we affirm the trial court’s judgment.

On June 18, 2018, Karen Mosley and Cable Busters, LLC,1 entered into a written contract whereby Cable Busters agreed to replace the roofs on Mosley’s house and garage for a price determined by Mosley’s insurance carrier, State Farm. Most of the money was to be paid by State Farm. The service agreement obligated Mosley to pay only her insurance deductible and any code upgrades not covered by her insurance policy.

State Farm issued one initial check and three additional checks upon completion of the work, all of which Mosley paid to Cable Busters. However, Mosley refused to pay the remaining invoice for $4,856.26. Cable Busters claimed that the remaining invoice included Mosley’s deductible, supplements, and other code upgrades not covered by her insurance policy.

On February 28, 2019, Cable Busters brought a breach-of-contract action against Mosley, seeking damages for the unpaid invoice. At trial, Mosley argued that she paid Cable Busters approximately $5,600 (the initial quote on the house plus the cost of the garage), and therefore, she paid Cable Busters the full amount due under the contract. Following a bench trial, the magistrate granted judgment in favor of Mosley. Without objection from Cable Busters, the trial court adopted the magistrate’s decision. Cable Busters filed this timely appeal, raising two assignments of error.

Acuity v. Masters Pharmaceutical, Inc.
Case #C190176

Quote from Judge Crouse's Opinion:

This case concerns an insurance company’s duty to defend and indemnify an insured pharmaceutical distributor in lawsuits brought by governmental entities for costs incurred combating the opioid epidemic.

Defendant-appellant Masters Pharmaceutical, Inc., (“MPI”) was a pharmaceutical wholesale distributor with its principal place of business in Hamilton County, Ohio. As part of its business, MPI would fill and ship orders of prescription opioids to pharmacies around the country. “Opioids” refers to a class of prescription drugs primarily used to treat pain. Opioids can be highly addictive, a trait which has contributed to hundreds of thousands of drug-overdose deaths in the United States, in what is now commonly referred to as the “opioid epidemic.” 1 MPI has been sued by various cities and counties (“governmental entities”) from three different states— West Virginia, Michigan, and Nevada—for costs incurred combating the opioid epidemic (the “underlying suits”). At the time the underlying suits were filed, MPI was insured by plaintiff-appellee Acuity under eight commercial general liability (“CGL”) policies. The insurance policies imposed upon Acuity, under certain circumstances, a duty to defend MPI against lawsuits, and to indemnify MPI for damages it may be legally obligated to pay as a result

State of Ohio v. Albert McCants
Case #C190143

Quote from Judge Crouse's Opinion:

In this appeal, we are tasked with determining whether the trial court erred in imposing the maximum amount of fines, court costs, and court-appointed attorney fees on an indigent defendant who was sentenced to 16 years in prison pursuant to guilty pleas to multiple felonies. For the following reasons, we affirm the trial court’s order imposing the fines and court costs, but reverse the court’s order on attorney fees and remand for the court to conduct a hearing to determine McCants’s present and future ability to pay those fees.