Volume 203 — North Eastern Reporter, Third Series

The trial court did not err in granting summary judgment in favor of appellee on appellants' negligence claims based upon the defense of sudden medical emergency. Although appellee is diabetic, his sudden lack of consciousness while driving was not foreseeable. Judgment affirmed.

When federal court dismisses state claims after declining to exercise supplemental jurisdiction, 28 U.S.C. 1367(d), a tolling statute, applies to provide additional time for refiling in state court only when the statute of limitations expires while the action is pending in federal court. Where a plaintiff utilizes R.C. 2305.19(A), to file in federal court after the original statute of limitations has expired, there is no period of limitations to toll and no 30-day grace period for refiling in state court.

CIVIL - abuse of discretion breach of contract impossibility of performance due to COVID-19 is not a cause of action but an affirmative defense party center materially breached contract with bride by unilaterally modifying the contract to implement COVID-19 restrictions, both voluntary and mandated, on bride's wedding reception and denied bride's request to postpone wedding date due to COVID-19 where contract expressly stated that no terms of the contract may be changed subsequent to its signing complaint gave party center fair notice of claims against it affirmed.

Appellant failed to raise issue whether statement was an excited utterance at trial so cannot raise it for the first time on appeal. Trial court's imposition of consecutive sentences was supported by the record.

The trial court did not err by denying appellant's presentence motion to withdraw his guilty plea brought pursuant to Crim.R. 32.1 where appellant, a non-citizen, failed to show a reasonable and legitimate basis for the withdrawal of his plea, nor did appellant receive ineffective assistance of counsel that would render appellant's guilty plea less than knowingly, intelligently, and voluntarily entered.

Abuse of Process Malicious Prosecution

Speedy-trial COVID-19 tolling events R.C. 2945.71 R.C. 2945.72. The trial court erred in finding that defendant's speedy-trial right was violated and dismissing his domestic violence charge. The record reflects that several events acted as valid tolling events, including the trial court's own administrative order citing difficulties holding jury trials due to challenges presented by the COVID-19 pandemic. The trial court's order dismissing the case failed to consider any of these valid tolling events.

R.C. 2929.25 community control modification journal entry nunc pro tunc clerical error. The trial court's judgment modifying the conditions of the appellant's community control is vacated because it was journalized after the deadline by which the appellant was ordered to comply with the modified conditions. The trial court also made a clerical error in its nunc pro tunc order correcting the dates of the appellant's offenses. The clerical error should be corrected by a second nunc pro tunc order that reflects the date of the amended sentencing entry, not the date of the original sentencing entry.

Civ.R. 50(B) judgment notwithstanding the verdict defamation commercial disparagement R.C. 1345.09(F)(1) Consumer Sales Practices Act attorney fees Civ.R. 15(A) amended complaint Civ.R. 37 denial of motions to compel Evid.R. 404 character evidence replevin. The trial court's denial of appellants' motion for judgment notwithstanding the verdict was not in error. The record reflects sufficient material evidence to create a factual question for the jury and lacks a basis to overcome the presumption of regularity in the jury's verdict. The trial court's grant of leave to amend the complaint did not constitute an abuse of discretion and appellants were not prejudiced thereby. The trial court did not abuse its discretion by denying the motions to compel additional discovery of appellee or discovery from a third-party law firm regarding ownership of the vehicle. Ownership was not a prerequisite to the replevin action, or the Consumer Sales Practices Act claims, and appellants prevailed on the claims. The trial court's exclusion of appellants' witness to rebut appellants' liability for violating the Consumer Sales Practices Act, appellee's credibility and propensity for truthfulness, and ownership of the vehicle was not an abuse of discretion. The trial court's denial of attorney fees under R.C. 1345.09(F)(1) constitutes an abuse of discretion.

AUTHENTICATION - SUMMARY JUDGEMENT - NEGLIGENCE- OPEN AND OBVIOUS: The trial court did not abuse its discretion if it considered photographs attached to defendants' summary-judgment motion because plaintiff referred to the photographs in her deposition testimony and defense counsel's accompanying affidavit made clear that the photographs had been produced by plaintiff's counsel following the deposition and that they were the photographs that plaintiff had testified about. Because defendants owed no duty to plaintiff, the trial court properly entered summary judgment in favor of defendants on plaintiff's negligence claim after plaintiff stepped into a depression in the pavement in defendants' parking lot even though plaintiff recognized the hazard, she knowingly stepped into the hazard, and the open and obvious nature of the hazard negated any duty by defendants to warn plaintiff of the hazard.

CRIMINAL LAW - post-sentence motion to withdraw guilty plea no hearing provided lawful non-citizen resident ineffective assistance of counsel failure to advise of deportation when clear a defendant will be deported counsel must advise uncontested that advice was wrong trial court's advisement also wrong mandatory deportation conclusive presumption performance below standard improbable result dire consequences deportation determinative affidavit hearing warranted.

State's appeal consecutive sentences for firearms specification