Volume 165 — North Eastern Reporter, Third Series

Shipper appeals decision that dismissed complaint alleging breach of contract and negligence against freight broker. Court found shipper's claim preempted by federal law. Shipper's negligence claim, derived from state common law, was preempted under 49 U.S.C. 14501(c)(1), which statute prohibits state from enforcing common law claims related to price, route, or services of freight brokers. Federal law did not preempt a routine breach of contract claim against the freight broker, as such a claim derives from private agreement and is a self-imposed, not state-imposed, obligation.

A prisoner confined under an order issued by a court having jurisdiction over both the action and the prisoner but not found to be void until after the prisoner's release, does not have a cognizable action for false imprisonment against the Ohio Department of Rehabilitation and Correction. A false imprisonment action against ODRC may be successful only where imprisonment was not according to the terms of a court order or judgment, or where it otherwise may be voidable and has been determined to be void during the prisoner's period of confinement.

Defendant-appellant's conviction for operating a motor vehicle while under the influence of a drug of abuse is based on insufficient evidence. The State presented insufficient evidence that Benadryl, when taken in a quantity exceeding the recommended dosage, is a drug of abuse.

The trial court did not err in instructing the jury on self-defense, the trial court did not err in failing to instruct the jury on the inferior degree offense of involuntary manslaughter, the doctrine of cumulative errors does not apply to warrant reversal, Ferrell did not receive the ineffective assistance of counsel, and the sufficiency of the evidence and the manifest weight of the evidence support Ferrell's conviction of felony murder.

Trial court erred in granting appellee-mortgagee's motion for summary judgment when mortgagee had not provided Civ.R. 56(C) evidentiary quality material to settle as a matter of law appellant-homeowner's allegation that mortgagee and its predecessors in interest had failed to provide written notice of delinquency on a HUD-supplied or-approved form as required by 24 C.F.R. 203.602. Decision affirmed in part and reversed in part cause remanded.

The trial court erred in granting summary judgment on plaintiffs' claim for defamation where genuine issues of material fact remain regarding whether defendant acted negligently in publishing the allegedly defamatory statements.

POSTCONVICTION—JURISDICTION—CONSTITUTIONAL LAW/CRIMINAL—VIOLENT OFFENDER DATABASE: Defendant's postconviction allied-offenses and sufficiency-of-the-evidence claims were subject to dismissal for lack of jurisdiction: the claims were reviewable under R.C. 2953.21 et seq., governing the proceedings on a petition for postconviction relief, because they sought relief based on alleged constitutional violations during the proceedings leading to defendant's convictions, R.C. 2953.21(A)(1) but the postconviction statutes did not confer jurisdiction to entertain the claims, because neither claim satisfied R.C. 2953.21(A)(2)'s time restrictions or R.C. 2953.23's jurisdictional requirements for entertaining a late postconviction claim nor could relief on those grounds have been afforded under the jurisdiction to correct a void judgment, because defendant's convictions were not void when entered by a court having personal and subject-matter jurisdiction. The common pleas court erred in refusing to entertain defendant's R.C. 2903.42(A)(2)(b) motion to rebut the R.C. 2903.42(A)(1) presumption requiring him to enroll for ten years in the violent-offender database: defendant's right to rebut the presumption arose on the March 20, 2019 effective date of the violent-offender-database statutes, when defendant was, by operation of law, classified under R.C. 2903.41(A)(2) as a violent offender and the court had jurisdiction to entertain defendant's motion to rebut the presumption, when defendant satisfied the R.C. 2903.42(A)(2)(b) requirement that the motion be filed "prior to [his] release from confinement."

Regarding procedure, App.R. 26 provides a mechanism by which a party may prevent miscarriages of justice that could arise when an appellate court makes an obvious error OR (italicize) renders an unsupportable decision under the law. "Obvious error" is not limited to "unsupportable under the law" but can encompass other types of error as well. Furthermore, when the criteria for reconsideration has been met, App.R. 26(A)(1) permits a court to vacate its own decision being reconsidered. Finally, the court acknowledges the following issue is pending before the Supreme Court in Jezerinac v. Dioun, 2020-O743: whether "under App.R.26(A)(1)(c), an application for reconsideration must be considered by the same three judges that considered the original decision." However, until such time as the Supreme Court decides the appeal, the court follows longstanding precedent and practice when, as here, original panel members resign or retire: proceed to consider reconsideration with the judge who was appointed to the seat previously held by the original panel member judge who resigned, and, with a judge of the court randomly selected to serve on the panel, due to a conflict with the judge who was elected to the seat previously held by the original panel member judge who retired. Regarding the merits, plaintiff-appellee's application for partial reconsideration of the first reconsideration decision denied. Defendant-appellant's application for reconsideration of the first reconsideration decision denied. Defendant-appellant's application for consideration en banc denied.

Trial court did not commit plain error by not declaring a mistrial the court knew that the remarks were improper and indicated that it would disregard the improper evidence. Appellant's convictions are supported by the weight of the evidence, despite issues with the victim's credibility. Aggravated robbery and felonious assault convictions did not merge because they caused separate and identifiable harms. R.C. 2929.14(B)(1)(g) required the court to impose prison terms for both firearm specifications.

Appellant waived challenge to accuracy of state's explanation of facts when he entered no contest plea. Medical records relied upon to challenge accuracy of facts are not part of record on appeal and cannot be considered. Appellant's challenge to constitutionality of S.B. 201 not yet ripe for review where he has not yet served minimum sentence or been subjected to possible extension of minimum sentence. As other courts have implicitly held otherwise, we certify conflict to Ohio Supreme Court.