Volume 171 — North Eastern Reporter, Third Series

NEGLIGENCE - summary judgment express assumption of risk ambiguity waiver so general as to have no meaning injury anguish primary assumption of risk implied assumption of risk.

The trial court erred in incorporating a contractual right of first refusal into a court order describing the parties' settlement agreement. The right of refusal was unlimited and therefore violated the rule against perpetuities. The trial court also erred when it added some terms to another right of refusal provision, because the terms were not implied in the settlement agreement nor were they matters of custom and practice. However the agreement can be modified by deleting the offending language and by including terms that are implied or supported by custom and practice. Judgment affirmed in part, reversed in part, modified, and remanded for further proceedings.

Severed Mineral Rights - Marketable Title Act - Dormant Mineral Rights Act - Summary Judgment

The trial court erred in its calculation of attorney fees and in its analysis of frivolous conduct. Therefore, the trial court's judgment was reversed and the matter was remanded to the trial court with instructions to enter $161,292.40 in attorney fees and costs to be paid under the settlement agreement and to reconsider the previous sanctions award.

The trial court erred when it overruled appellant's motion for return of a firearm. The trial court's order to forfeit and destroy the firearm was not lawful under any section of R.C. 2981 or R.C. 2923.13(A)(5). Judgment reversed and remanded.

The trial court did not err in granting the motion of the Ohio Bureau of Workers' Compensation for partial judgment on the pleadings pursuant to Civ.R. 12(C), the trial court did not err in denying appellant's motion for partial summary judgment upon liability, and the trial court did not err in granting BWC's motion for summary judgment. Neither R.C. 4123.341 nor R.C. 4123.67, the statutes relied upon by appellant for his claims of entitlement to monetary compensation, provides for a private cause of action. Therefore, appellant's claims fail as a matter of law. The judgment of the Court of Claims of Ohio is affirmed.

FORMER R.C. 9.68 — JUSTICIABILITY — ATTORNEY FEES: Where policies alleged to violate former R.C. 9.68 were fully repealed after the plaintiff's complaint was filed, but before the trial court entered any orders, the trial court lost subject matter jurisdiction to award declaratory and injunctive relief. The trial court retained subject matter jurisdiction to award attorneys' fees to a party who "prevails in a challenge" under former R.C. 9.68(B). A party "prevails in a challenge" under former R.C. 9.68(B) when he or she can show that the lawsuit was the but-for cause of a voluntary policy change. Attorneys' fees incurred in pursuit of a non-justiciable injunction after a former R.C. 9.68 plaintiff "prevails in a challenge" are not reasonable and must be excluded from the trial court's attorneys' fee award.

JURY TRIAL – R.C. 2743.48 – WRONGFUL IMPRISONMENT: R.C. 2743.48 does not provide a statutory right to a jury trial for the initial determination of innocence by the common pleas court in an action filed under R.C. 2743.48(B)(1). Because a wrongful-imprisonment action under R.C. 2743.48 is a special proceeding that did not exist at common law, R.C. 2311.04 does not provide a right to a jury trial for such an action. The application of R.C. 2721.10 is limited to actions brought under R.C. Chapter 2721 and does not provide a right to a jury trial in a wrongful-imprisonment action under R.C. 2743.48. Article I, Section 5 of the Ohio Constitution does not preserve a right to a jury trial for a wrongful-imprisonment action filed against the state because the action did not exist at common law. [But see DISSENT: A wrongful-imprisonment claim under R.C. 2743.48 functions as a modern, statutory extension of the common-law tort of false imprisonment, and this is enough to satisfy Ohio's "type of claim" standard for a jury trial right further, R.C. 2743.48 recognizes a cause of action to recover money damages, a classic form of legal relief that justifies a jury trial.]

Trial court decision denying appellants' motion for Civ.R. 60(B) relief from default judgment was not an abuse of discretion and was not error. Civ.R. 60(B) motion was filed after underlying default judgment had already been affirmed in an appeal by co-defendant which appellants did not join. Plaintiff's complaint stated a valid cause of action against appellants, appellants failed to answer the complaint, and appellants could not establish that they were entitled to relief for one of the reasons stated in Civ.R. 60(B)(1)-(5). Judgment affirmed.

Motion to vacate arbitration award application to confirm arbitration award motion to vacate arbitration award R.C. 2711.13 order confirming award. Pursuant to R.C. 2711.13, if a party is not satisfied with the arbitration award,ey may file a motion to modify, vacate, or correct the award within three months after they receive the award. The motion must be based on one of the circumstances outlined in R.C. 2711.10. Once the party fails to file the appropriate motion within the three-month period, the trial court is precluded from modifying or vacating the award. Because appellant did not file a motion to vacate, the trial court properly found that it failed to comply with the statutory mandate for challenging an arbitration award. Based on appellant's failure to properly file a motion to vacate the arbitration award, the trial lacked jurisdiction to vacate, modify, or correct the award.