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Black v. Hicks

Court of Appeals of Ohio, Eighth District, Cuyahoga

June 14, 2018

ARNOLD BLACK PLAINTIFF-APPELLEE
v.
DET. RANDY HICKS, ET AL. DEFENDANTS-APPELLANTS

          Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-14-826010

          ATTORNEY FOR APPELLANTS Willa M. Hemmons Director of Law, East Cleveland.

          ATTORNEYS FOR APPELLEE Robert F. DiCello Mark A. DiCello Justin Hawal DiCello Levitt & Casey, David E. Weisblatt Jackson Lewis P.C.

          Randy Hicks, pro se ON RECONSIDERATION [1]

          BEFORE: Celebrezze, J., Laster Mays, P.J., and Keough, J.

          JOURNAL ENTRY AND OPINION

          FRANK D. CELEBREZZE, JR., J.

         {¶1} Defendants-appellants, East Cleveland Police Officer Jonathan O'Leary, East Cleveland Police Chief Ralph Spotts, the city of East Cleveland, and John Does 1-10 (collectively "appellants"), bring the instant appeal challenging the jury's verdict in favor of plaintiff-appellee, Arnold Black ("Black"), on Black's claims for malicious prosecution, abuse of process, spoliation, battery, false imprisonment, supervisory liability, reckless/wanton/willful conduct pursuant to R.C. 2921.52, and civil conspiracy. Appellants further challenge the trial court's dismissal of their cross-claim against defendant-appellee, Randy Hicks, a former East Cleveland Police Detective ("Hicks"). Appellants argue that the trial court violated Civ.R. 39(A) and Loc.R. 21 by conducting an ex parte jury trial, their constitutional due process rights were violated when the trial court failed to provide them notice of the trial date, and that the trial court issued orders and conducted a jury trial during the pendency of appeals that were inconsistent with this court's and the Ohio Supreme Court's exercise of jurisdiction. After a thorough review of the record and law, this court reverses and remands for further proceedings consistent with this opinion.

         I. Factual and Procedural History

         {¶2} The instant matter arose from an incident that occurred on April 28, 2012, during which Black alleged that appellants arrested him without probable cause and used excessive force in doing so. On April 28, 2014, Black filed a complaint against Hicks and appellants in which he asserted claims for malicious prosecution, abuse of process, spoliation, battery, false imprisonment, supervisory liability, reckless/wanton/willful conduct pursuant to R.C. 2921.52, and civil conspiracy.

         {¶3} On May 6, 2014, appellants filed an answer and a cross-claim against Hicks, alleging that Hicks was not acting as an agent of the East Cleveland Police Department on April 28, 2012. On December 15, 2014, Hicks, acting pro se, filed an answer to Black's complaint and appellants' cross-claim.

         {¶4} On October 1, 2015, the trial court set the matter for trial on April 11, 2016, at 9:00 a.m.

         {¶5} On March 24, 2016, Black filed (1) a motion for default judgment or, in the alternative, a motion to preclude appellants from presenting evidence and witnesses at trial that were not disclosed during the exchange of discovery; (2) a motion in limine to exclude character evidence; (3) a motion in limine to exclude evidence regarding defendants' inability to satisfy a judgment; and (4) a motion in limine to exclude evidence in support of affirmative defenses.

         {¶6} On April 4, 2016, the trial court cancelled the trial set for April 11, 2016. Trial was rescheduled for May 23, 2016.

         {¶7} On April 19, 2016, the trial court issued an order requiring appellants to respond to Black's discovery requests on or before May 2, 2016. The trial court indicated that appellants' failure to respond to the discovery requests would result in sanctions, including the exclusion of the evidence and witnesses at trial that defendants failed to produce during discovery.

         {¶8} On April 20, 2016, the trial court vacated its April 19, 2016 order and set a show cause hearing requiring appellants to show cause why they failed to respond to Black's discovery requests. The trial court's journal entry stated that appellants' failure to show cause would result in sanctions, including appellants being precluded from offering evidence, witnesses, and arguments at trial that they failed to produce during discovery.

         {¶9} On May 6, 2016, appellants filed an appeal challenging the trial court's April 20, 2016 order. Black v. Hicks, 8th Dist. Cuyahoga No. 104453 ("Black I "). On May 10, 2016, this court dismissed the appeal for lack of a final appealable order.

         {¶10} On May 9, 2016, the trial court denied Black's motion for default judgment. The trial court granted, however, Black's motion to preclude appellants from offering evidence and witnesses at trial that were not disclosed during discovery. The trial court concluded that appellants failed to respond to Black's requests for discovery, failed to respond to Black's motion to exclude evidence, and failed to provide a reason or excuse for their failure to respond to discovery. On the same date, the trial court granted Black's motions in limine to exclude character evidence, evidence regarding appellants' inability to satisfy a judgment, and evidence in support of affirmative defenses; the trial court also granted Black's request to have admissions deemed admitted against Hicks.

         {¶11} On May 10, 2016, appellants filed an appeal challenging the trial court's May 9, 2016 orders. Black v. Hicks, 8th Dist. Cuyahoga No. 104461 ("Black II "). On May 24, 2016, this court dismissed the appeal for lack of a final appealable order.

         {¶12} On May 25, 2016, appellants filed a notice of appeal and a memorandum in support of jurisdiction in the Ohio Supreme Court challenging this court's dismissal in Black II. Black v. Hicks, Ohio Supreme Court Case No. 2016-0805 ("Black III "). Appellants assert that this appeal was perfected at approximately 9:36 a.m. The Ohio Supreme Court subsequently declined to accept jurisdiction of the appeal and denied Black's motion for sanctions against appellants on September 14, 2016.

         {¶13} The case was set for trial on May 23 and May 24, 2016. On both dates, trial was continued. Despite the appeal pending in the Ohio Supreme Court, a jury trial commenced on May 25, 2016, at approximately 11:50 a.m. Neither appellants nor counsel appeared in court on May 23, 24, or 25.

         {¶14} The jury trial concluded on May 31, 2016. The jury returned a verdict in favor of Black, which the trial court journalized on June 3, 2016. The trial court's judgment entry provides:

Trial start date May 25, 2016, and end date May 31, 2016, before eight jurors and two alternate jurors. * * * The jury finds $10, 000, 000.00 (ten million dollars) in compensatory damages for [Black] against the following defendants arising out of the following claims: (1) for [Black] against defendant Detective Randy Hicks and defendant Officer Jonathan O'Leary as to [Black's] first claim for violation of [Black's] federal civil rights; (2) for [Black] against defendant City of East Cleveland as to [Black's] second claim for municipal liability; (3) for [Black] against defendant Detective Randy Hicks and defendant Officer Jonathan O'Leary as to [Black's] third claim for false imprisonment/arrest; (4) for [Black] against defendant Detective Randy Hicks and defendant Officer Jonathan O'Leary as to [Black's] fourth claim for battery; joint and several liability as to Claims 1, 2, 3 and 4[;] (5) for [Black] against defendant Chief Spotts as to [Black's] fifth claim for supervisory liability; and (6) for [Black] against defendant Chief Spotts as to [Black's] sixth claim for spoilation.
Furthermore, the jury finds $12, 000, 000.00 (twelve million dollars) in punitive damages for [Black] as follows: (1) for [Black] against defendant Officer Jonathan O'Leary in the amount of 1, 000, 000.00 (one million dollars) as to [Black's] first claim for violation of [Black's] federal civil rights, as to [Black's] third claim of false imprisonment/arrest, and as to [Black's] fourth claim for battery; and, (2) for [Black] against defendant Chief Spotts in the amount of $11, 000, 000.00 (eleven million dollars) as to [Black's] fifth claim for supervisory liability and as to [Black's] sixth claim for [spoliation].

         {¶15} On June 15, 2016, appellants filed an appeal challenging the trial court's judgment. Black v. Hicks, 8th Dist. Cuyahoga No. 104613 ("Black IV"). On November 8, 2016, this court dismissed the appeal for lack of a final appealable order, finding that judgment was not entered on all of Black's claims.

         {¶16} On November 14, 2016, Black filed a notice of voluntary dismissal of Counts 7 (reckless/wanton/willful conduct pursuant to R.C. 2921.52) and 8 (civil conspiracy). On June 20, 2017, Black filed a notice of voluntary dismissal of Counts 7 and 8 of his complaint with prejudice. On June 29, 2017, the trial court issued a journal entry confirming that Black dismissed Counts 7 and 8 of his complaint. The trial court indicated that these counts were dismissed with prejudice.

         {¶17} On December 12, 2016, appellants filed an appeal challenging the trial court's judgment. Black v. Hicks, 8th Dist. Cuyahoga No. 105248 ("Black V "). This court dismissed the appeal, sua sponte, on March 21, 2017, due to appellants' failure to file an appellate brief. This court granted appellants' motion to reinstate the appeal on March 28, 2017.

         {¶18} In the instant appeal, appellants assign four errors for review:

I. The lower court's conduct of an ex parte jury trial was in violation of Civ.R. ...

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