Volume 176 — North Eastern Reporter, Third Series

MUNICIPAL — IMMUNITY — R.C. CHAPTER 2744 —SANCTIONS — R.C. 2323.51 — FRIVOLOUS CONDUCT: The immunity under R.C. Chapter 2744 for political subdivisions is limited to liability for damages in tort and does not apply to a R.C. 2323.51-based financial sanction imposed against a political subdivision for frivolous conduct during a civil action.

Statutory interpretation R.C. 5805.06 revocable trust settlor trustee beneficiary 2012 guaranty setoff provision. When reviewing questions of statutory interpretation, our standard of review is de novo. A court's main objective when interpreting a statute is to determine and give effect to the legislative intent. We first look to the language of the statute itself to determine the intent of the General Assembly. When a statute's meaning is clear and unambiguous, we apply the statute as written. In general, a "trust" is defined as "the right, enforceable in equity, to the beneficial enjoyment of property, the legal title to which is in another." When construing the provisions of a trust, the court's primary duty is to ascertain, within the bounds of the law, the intent of the settlor. If the language of the trust agreement is unambiguous, the settlor's intent can be determined from the trust's express language. "The words in the trust are presumed to be used according to their common, ordinary meaning." Article I of plaintiff's exhibit No. 25, the restatement of the trust agreement, stated in relevant part that: "Grantor reserves the power to revoke this Trust Agreement, in whole or in part, or to amend any of its provisions. Grantor may withdraw any insurance policy, security or other property belonging to the trust estate. This Trust Agreement shall become irrevocable upon the death of the Grantor." The restatement document lists Appellee as the Grantor or Settlor. A settlor of a trust has, under most circumstances, unfettered discretion to dispose of her or his assets as the settlor so chooses. The restatement also lists Appellee as the Trustee, as well as the sole Beneficiary. Based on the plain reading of the restatement document, we determine that the instrument was a revocable trust. R.C. 5805.06 provides in pertinent part as follows: (A) Whether or not the terms of a trust contain a spendthrift provision, all of the following apply: (1) During the lifetime of the settlor, the property of a revocable trust is subject to claims of the settlor's creditors. Having determined, based upon the plain reading of the restatement document, as well as Appellee's own testimony that the instrument represented was a revocable trust and that Appellee was the settlor, we conclude the plain reading of R.C. 5805.06 allows creditors to reach the assets of the trust. The 2012 Guaranty stated in pertinent part that: "Lender reserves a right of setoff in all Guarantor's accounts with Lender (whether checking, savings, or some other account). However, this does not include any IRA or Keough accounts, or any trust accounts for which setoff would be prohibited by law." A plain reading of the setoff provision, as it pertains to trusts, only exempts "any trust for which setoff would be prohibited by law." Because it is well accepted that a revocable trust is subject to the claims of the settlor's creditors while the settlor is living, the account, at issue, was not of the type where a setoff was prohibited by law. As such, Appellant did not act improperly when it set off the account in the name of the Revocable Trust and there was no breach of contract.

The trial court did not err in overruling appellant's motions for summary judgment and a directed verdict and entering judgment for appellee following a bench trial on her complaint for breach of an oral settlement agreement. The statute of frauds did not apply, and the preponderance of the competent, credible evidence supported a finding that the parties had entered into an oral settlement agreement obligating appellant to pay appellee $75,000. Given the existence of an oral contract, appellant's argument that appellee could not rely on promissory estoppel is moot. Judgment affirmed.

Appellant's conviction pursuant to R.C. 4511.213(A)(1) is against the manifest weight of the evidence. A reduction in speed is not a statutory predicate to establishing that appellant proceeded with "due caution" under R.C. 4511.213(A)(1). Judgment reversed.

Trial court erred in granting motion to suppress. Assuming without deciding that search warrant affidavit did not establish probable cause to search residence, affidavit was not a "bare bones" affidavit police acted in objectively reasonable reliance on search warrant issued by detached and neutral issuing judge.

Summary judgment Civ.R. 56 breach of contract tenure damages causation substantial prejudice. The trial court properly granted summary judgment in favor of appellee. Appellant failed to demonstrate that but for appellee's purported breach of contract, he would have been awarded tenure. Accordingly, appellee was entitled to judgment as a matter of law.

Under appropriate circumstances, a court has inherent power to order specified people not to threaten jurors, witnesses, or other trial participants. And because true threats in this context are not constitutionally protected speech, both appellant and appellee are incorrect in arguing that the trial court could not issue its order without a hearing. But the trial court erred in finding contempt where the manifest weight of the evidence did not establish beyond a reasonable doubt that appellant had violated the order. Judgment reversed cause remanded.

CRIMINAL LAW - rape motion to dismiss indictment statute of limitations motion in limine cross-examination impeach credibility Evid.R. 611(B) victim's prior drug use ability to remember Evid.R. 616(B) relevancy undue prejudice sufficiency of the evidence manifest weight of the evidence sentencing amended indictment Crim.R. 7(D) aggravated felonies name or identity of the charged offenses.

CRIM.R. 16 – DISCOVERY: In a domestic-violence case, the trial court erred in allowing the state to admit photographs of the victim's injuries disclosed on the morning of trial without inquiring into the circumstances of the discovery violation and considering the proper factors provided by State v. Darmond, 135 Ohio St.3d 343, 2013-Ohio-966, 986 N.E.2d 971.

Trial court did not err in granting defendant's motion to suppress evidence of illegal drugs found during an improper pat down of the defendant. Judgment affirmed.

In an action to enforce a foreign judgment from a sister state under R.C. 2329.21 et seq., the trial court's decision—to deny full faith and credit to that foreign judgment—was affirmed where the sister state never acquired personal jurisdiction over the Ohio defendant. The record in the underlying breach of contract action failed to establish sufficient contacts by the Ohio defendant in that state such that it could be said that it purposely availed itself of the privilege of conducting business there.

Trial court did not err because plaintiffs established elements required for granting summary judgment in a foreclosure action. Appellants' failure to respond to request for admissions was a conclusive admission of the matter contained in the request.

Evidentiary Issues - The trial court did not err in excluding appellant from introducing extrinsic evidence of a prior inconsistent statement by the victim, where the victim admitted making the inconsistent statement on cross-examination. Appellant failed to preserve the issue of the admissibility of evidence subject to a motion in limine ruling by failing to seek to introduce the evidence at trial or by failing to proffer it at trial. Finally, the trial court did not err in admitting text messages which were recovered by law enforcement after being deleted, as the texts were authenticated by the victim and law enforcement and the full context of the text messages that could be recovered were made available. Motion for New Trial - The trial court did not err in denying appellant's motion for new trial on the basis that defense counsel failed to discover a topless photograph of the victim shared by the state during discovery where appellant failed to demonstrate he was prejudiced by defense counsel's failure to discover or use the photograph. The trial court did not err in denying appellant's motion for new trial on the basis that the victim had an undisclosed financial interest in the outcome of trial where the prosecutor advised defense counsel of the possible financial interest prior to trial and the victim was cross-examined about her financial interest at trial.

Motion to dismiss drug trafficking R.C. Chapter 4729 R.C. 2925.03 wholesaler bill of particulars specificity in pleading. The trial court erred in dismissing an indictment that met the minimum pleading standards and any challenges as to the lack of specificity in the bill of particulars did not prejudice the defendants' ability to present a defense at this early stage of the proceedings.

Appellant's challenge to the constitutionality of the Reagan Tokes Act is not ripe for review. Trial counsel is not ineffective for failing to argue that the Reagan Tokes Act is unconstitutional.