Friday First District Roundup 8-21-20

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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Joel Zalvin v. Andrea J. Ayers, Cheryl K. Beebe, Richard R. Devenuti, Jeffrey H. Fox, Joseph E. Gibbs, Joan E. Herman, Robert E. Knowling, Jr., Thomas L. Monahan, III, Robert L. Nelson, Convergys Corp.
Case #C190285

Quote from Judge Zayas' Opinion:

Plaintiff-appellant Joel Zalvin appeals from the judgment of the Hamilton County Court of Common Pleas, which dismissed his second amended complaint. Defendants-appellees in this case are Convergys Corporation (“Convergys”) and nine of its directors (“defendant directors”): Andrea J. Ayers, Cheryl K. Beebe, Richard R. Devenuti, Jeffrey H. Fox, Joseph E. Gibbs, Joan E. Herman, Robert E. Knowling, Jr., Thomas L. Monahan, III, and Robert L. Nelson. Zalvin, on behalf of a class of nominal shareholders, filed a shareholder derivative class action against Convergys and the defendant directors alleging improprieties in the sale of Convergys to Synnex Corporation. For the following reasons, we affirm the trial court’s judgment.

Nasser Kassem v. Ronald Barnes
Case #C190539

Quote from Judge Mock's Opinion:

Defendant-appellant Ronald Barnes, the tenant, appeals the trial court’s judgment, following a jury trial, in favor of plaintiff-appellee Nasser Kassem, the landlord, on his action for forcible entry and detainer, restitution of the premises and unpaid rent. Because the trial court erroneously prohibited Barnes from presenting the defense of retaliation to the eviction proceeding, we reverse the trial court’s judgment and remand this matter for further proceedings.

Kassem filed a complaint for eviction and unpaid rent on November 14, 2016. Two weeks later, Barnes filed an answer generally denying the allegations of the complaint and asserting three counterclaims. Barnes did not plead specific supporting facts under these counterclaims nor did he request a specific amount of monetary damages in the prayer for relief. The first two counterclaims simply alleged that Kassem filed the eviction action in retaliation against Barnes. The third counterclaim only alleged that the tenant was owed “damages and attorney fees.”

Melissa Browning v. Zoological Society of Cincinnati, Sarah Morrison, Administrator, Ohio Bureau of Workers' Compensation
Case #C190381

Quote from Judge Bergeron's Opinion:

In this worker’s compensation appeal, the entire basis for seeking to overturn the trial court’s result is the court’s admission that it may not have scrutinized each page of the record. The employer seizes upon this as its ticket for reversal, but in so doing, seeks to impose an obligation on trial courts to fly-speck every sheet of paper that the parties heave onto their desks. The trial court here evinced great familiarity with the case and the nuances of the claim at hand, and certainly reviewed the record in depth. We have no hesitation in affirming its decision.

In January 2013, plaintiff-appellee Melissa Browning suffered an ankle injury during the course of her employment with defendant-appellant Zoological Society of Cincinnati (the “Zoo”). Stemming from this injury, Ms. Browning filed a claim with the Ohio Bureau of Workers’ Compensation, with her claim permitted as to the conditions of left ankle sprain, closed fracture of the lateral malleolus, and right knee contusion. Ms. Browning subsequently requested participation for an additional condition of “stage II posterior tibial tendon insufficiency with accessory navicular displacement.” But this condition did not fare as well, with all three administrative levels of the Industrial Commission denying this request. Ms. Browning accordingly appealed to the court of common pleas.

Jindal Builders & Restoration Corp. v. Cincinnati Metropolitan Housing Authority
Case #C190217

Quote from Judge Bergeron's Opinion:

Delays in construction projects are one of the banes of existence. In this case, a contractor and owner fence over who bears the risk of loss for delay, and whether overhead costs are recoverable as damages under the contract at hand. Although the trial court denied the contractor any relief, we conclude that it erred by prohibiting overhead damages, but that only part of the time period sought by the contractor is ultimately recoverable. We therefore reverse in part and remand for further proceedings.

In re: B.D.
Case #C200177

Quote from Judge Bergeron's Opinion:

After entertaining a hearing on a “Motion to Divert Pursuant to Safe Harbor,” the juvenile court denied any relief, which prompted this appeal by appellant B.D. The state, however, responded by moving to dismiss the appeal, challenging our jurisdiction based on a lack of a final appealable order. In this issue of first impression in Ohio, we conclude that the order before us does not constitute a final appealable order, and we therefore must dismiss the appeal for lack of jurisdiction.

Appellant B.D. seeks to appeal from the juvenile court’s denial of his motion to divert under R.C. 2152.021(F)’s safe harbor provision. The General Assembly promulgated R.C. 2152.021(F) in 2012 as part of a broader legislative enactment to address serious issues related to human trafficking. See 2012 Am.Sub.H.B. No. 262, Final Bill Analysis. Other facets of the legislation required publishing of statistical data related to human trafficking, additional training for peace officers in investigating and handling human trafficking cases, creating a fund for victims of human trafficking, and increased criminal penalties for trafficking in persons. Id. Therefore, R.C. 2152.021(F) furthered the purposes of the legislation by providing a diversionary program for allegedly delinquent children who might be victims of human trafficking. Under division (F), where the child was charged with certain acts akin to solicitation or prostitution if committed by an adult, or the court has reason to believe that the child is a victim of human trafficking and the charged act relates to that victimization, the court may schedule a hearing to consider whether to hold a complaint in abeyance “pending the child’s successful completion of actions that constitute a method to divert the child from the juvenile court system[.]” R.C. 2152.021(F)(1). If the complaint is held in abeyance and the juvenile completes the mandated diversion actions to the court’s satisfaction, then “the court shall dismiss the complaint[.]” R.C. 2152.021(F)(5).

State of Ohio v. Eugene Clifford
Case #C190586

Quote from Judge Crouse's Opinion:

Petitioner-appellant Eugene Clifford appeals the Hamilton County Common Pleas Court’s judgment denying his R.C. 2953.21 petition for postconviction relief.

In 2017, Clifford was convicted upon jury verdicts finding him of guilty of trafficking in heroin, trafficking in cocaine, and having weapons while under a disability. The trial court sentenced him to prison terms totaling 14 years. He unsuccessfully challenged his convictions on direct appeal. See State v. Clifford, 1st Dist. Hamilton No. C-170279 (May 30, 2018), delayed appeal denied, 153 Ohio St.3d 1503, 2018-Ohio-4285, 109 N.E.3d 1259. {¶3} In this appeal, Clifford advances two assignments of error that may fairly be read together to challenge the denial of his postconviction petition without an evidentiary hearing. For the following reasons, we affirm the trial court’s judgment.

State of Ohio v. Sara E. Rogers
Case #C190250

Quote from Judgment Entry:

Bringing forth two assignments of error, defendant-appellant Sara E. Rogers appeals the trial court’s judgment convicting her of aggravated menacing in violation of R.C. 2903.21(A) and domestic violence in violation of R.C. 2919.25(A). We affirm the trial court’s judgments.

At the bench trial, Michael Sizemore, the victim, testified that Rogers was his girlfriend and that they had been living together for 11 months. On the day of the incident, they had gone out for lunch and had had a few drinks, but upon returning home, Rogers had argued with her father over the telephone and then left to go for a walk. Sizemore testified that she had returned home in the middle of the night, intoxicated, sporting a black eye and an arm that “was all screwed up.” Rogers kept yelling at Sizemore, saying that he had hurt her. They argued for over an hour, with Sizemore urging Rogers to go to bed. She did not, and instead punched herself in the nose, causing it to bleed. She said if Sizemore called “the cops,” then “he was going to jail for domestic violence.” She eventually ran around Sizemore, dove for the nightstand where Sizemore kept his gun, and “faceplanted” into the nightstand. She grabbed the gun and pointed it at him. Sizemore testified that at the time he was “afraid of being shot or death.” He testified that he was taught that whenever a gun was in play, to always consider it a loaded weapon. After he gained control of the gun, he realized it was not loaded. Sizemore testified that Rogers then hit and punched him and dug her nails into his skin, which was painful and left marks. A photograph of his injuries was admitted into evidence. Eventually, Sizemore went outside to call the police. Rogers followed him, continuing to hit him. When the police arrived, she ran away.

Robert A. Goering, Treasurer, Hamilton County, Ohio v. Richard Lee Gill, Heir of James Gill, Deceased, Jane Doe, Unknown Spouse of Richard Gill, Andrea Matthews, Heir of James Gill, Deceased, John Doe, Unknown Spouse of Andrea Matthews, Darrell Gill, Heir of James Gill, Deceased, Jane Doe, Unknown Spouse of Darrell Gill, Elton Hoskins, Heir of James Gill, Deceased, Jane Doe, Unknown Spouse of Elton Hoskins, Unknown Heirs, Legatees, Devisees, Beneficiaries and Assigns of James Gill, State of Ohio, Hamilton County Child Support Enforcement Agency, Tracy Winkler, Clerk of Courts
Case #C190312

Quote from Judgment Entry:

This appeal arises from the trial court’s denial of plaintiff-appellant Hamilton County Treasurer Robert Goering’s motion for forfeiture and disbursement of excess funds resulting from a tax foreclosure. We affirm.

In 2013, Goering filed a complaint for foreclosure and sale of real estate based on delinquent taxes that James Gill owed on a vacant plot of land he owned in Cincinnati, Ohio. As James Gill had died in 2012, within the complaint, Goering named individuals and entities with a purported interest in the land, including James Gill’s son, Richard Gill. Richard Gill was the only heir to respond to Goering’s complaint—he filed a motion entitled “More time and hearing.”

In 2014, Goering obtained a summary judgment for the tax foreclosure, and in early 2015 the court ordered the property to be sold at a sheriff’s sale in satisfaction of Goering’s judgment lien. On April 3, 2015, an entry of notice of publication regarding the pending foreclosure was filed. Within the notice, the last owner’s name was listed as Richard Gill. On April 16, 2015, and the property sold at the sheriff’s sale for $11,500. The order for sale was returned and filed that same day, and within the order the last owner’s name was again listed as Richard Gill.