Volume 174 — North Eastern Reporter, Third Series

Carpenter v. United States, __ U.S. __, 138 S.Ct. 2206, 201 L.Ed.2d 507 (2018) was not retroactively applicable to appellant's case, as asserted in his petition for postconviction relief. Thus, the trial court correctly concluded that it was without jurisdiction to consider appellant's untimely petition. Judgment affirmed.

INSURANCE — DAMAGES: In an insurance-coverage dispute under a crime-protection policy, the trial court's award in favor of the plaintiff-insured was not against the manifest weight of the evidence where plaintiff-insured brought a claim to recover its loss within the contractual period and the plaintiff-insured's expert in forensic accounting opined (1) that plaintiff-insured's dishonest employee received $5.6 million in kickbacks from vendors (2) that the vendors transferred the cost of the kickbacks to plaintiff-insured through "purposeful inflation" of invoices and bids and (3) that this "purposeful inflation" of at least $5.6 million was a financial loss to the plaintiff-insured. The trial court did not err by granting summary judgment in favor of defendant-insurer on plaintiff-insured's claim of bad faith where defendant-insurer had a reasonable justification for denying coverage: plaintiff-insured had failed to submit the necessary proof required to establish a loss under the insurance policy. The trial court did not err by entering summary judgment in favor of plaintiff-insured on defendant-insurer's affirmative defense of failure to cooperate: plaintiff-insured had not materially prejudiced defendant-insurer's investigation by failing to reveal that it had secretly recorded dishonest-employee's telephone conversations where the recordings were difficult to understand and plaintiff-insured had taken no action against employee after reviewing the recordings.

Appellant, a public employer, appeals from the trial court's denial of an application to vacate an arbitration award that sustained a grievance regarding a union member's employment termination. The arbitrator's interpretation of the relevant provision of the collective bargaining agreement was necessary to determine whether the termination was for just cause. Thus, the arbitrator did not exceed her authority by engaging in the contractual interpretation. Further, the arbitrator's factual conclusions were not a basis upon which the award could be vacated. Finally, the arbitration decision did not violate public policy. Judgment affirmed.

Trial court did not err in concluding appellant, a minority shareholder in a limited liability company, did not have standing to prosecute a direct action for unjust enrichment against the majority shareholders, appellees. Because the minority shareholder did not allege that the majority shareholders breached a fiduciary duty owed to him, the exception to the general rule of standing applicable to minority shareholders in a close corporation did not apply to him. Trial court did not err by granting summary judgment to appellees on appellant's unjust enrichment claim because the evidence did not create an issue of fact whether appellant complied with the six-year statutory limitations period. Judgment affirmed.

Credit union reserved the right to change the terms of its membership agreement, which it did by adding a provision to arbitrate disputes. By maintaining his account after this term was implemented, appellant-credit union member manifested his assent to the arbitration provision. The arbitration provision in the membership agreement was not unconscionable. Judgment affirmed.

Season pass to amusement park is revocable license, but also a contract governed by pass's terms and conditions. Under terms and conditions, park could revoke pass without refund only for cause. Appellant properly pled breach of terms and conditions. Certain language employed in terms and conditions were ambiguous and subject to interpretation that could not be resolved in Civ.R. 12(B)(6) motion to dismiss. Inconsistent equitable claims were properly pled in the alternative and not subject to dismissal.