Volume 204 — North Eastern Reporter, Third Series

summary judgment – sovereign immunity – R.C. 2744.02(B)(1)(a) – R.C. 2744.03(A)(6) – police officer – pursuit – order to terminate – motorcycle – emergency call – willful, wanton, reckless

A medical claim has two elements: (1) the claim arises from the medical diagnosis, care, or treatment of any person and (2) the claim is asserted against a medical provider listed in R.C. 2305.113(E)(3). Both of these elements must be present for a medical claim to exist.

EXTRAORDINARY WRIT - petition for writ of mandamus compel appropriation proceeding leasehold just compensation injection wells permits shut-down orders seismic activity restart proposal administrative and judicial proceedings regulatory takings doctrine cognizable property interest only interest compensable question of law legitimate claim of entitlement no cognizable property interest in lease need more than an abstract or one-sided expectation no guaranteed interest in injecting brine no cognizable property interest in equipment permits due process protected through administrative procedures due process rights in permit do not rise to the level of a cognizable property interest no ability to transfer permit no right to exclude no common law right to inject brine fundamentally dependent on statutory compliance interest not protected by Fifth Amendment Takings Clause.

Defendant's convictions for murder, attempted murder, felonious assault, discharging a firearm into a habitation and WUD, along with the attendant specifications, including gang specifications, were supported by sufficient evidence and were not against the manifest weight of the evidence. Trial court did not err in admitting video recordings of victim-witness's statements to police under Evid.R. 804(B)(6) prosecution showed by preponderance of evidence that defendant engaged in wrongdoing that caused victim-witness to be unavailable for trial and that one purpose of the wrongdoing was to make victim-witness unavailable to testify. Trial court did not err in overruling defendant's motion to suppress photo array procedure was not unduly suggestive and victim's identification was reliable. Defendant did not establish that trial court was biased by participating in Crim.R. 16(F) pre-trial in camera certification hearing or conducting handwriting comparison during Evid.R. 804(B)(6) hearing. Trial court's failure to disclose participation in Crim.R. 16(F) certification hearing prior to defendant's reaffirmance of his jury waiver did not invalidate original jury waiver. No plain error in trial court's admission of nonpropensity-based evidence evidence probative to gang specifications. Defendant failed to prove trial counsel was ineffective.

Waiver of Arbitration Agreement

Trial court did not err in granting appellees' partial motion for judgment on the pleadings on appellant's claims for declaratory judgment, breach of contract and breach of fiduciary duty based on ecclesiastical abstention doctrine, nor did trial court err in granting appellees' motion for summary judgment as to appellant's remaining claims, including claims for defamation, intentional infliction of emotional distress and clergy malpractice.

Defamation, statutory immunity, public records request

In a class action lawsuit against defendant-appellant, Ohio University ("OU"), brought by a former OU undergraduate student challenging OU's closure of its Athens campus and switch to online classes in spring 2020 due to the Covid-19 pandemic and related government orders, the trial court abused its discretion by failing to conduct a rigorous analysis as to whether the plaintiff demonstrated the prerequisites of class certification under Civ.R. 23 were satisfied considering the economic injury theory alleged. As a result, pursuant to precedent including Felix v. Ganley Chevrolet, Inc., 145 Ohio St.3d 329, 2015-Ohio-3430 and Cullen v. State Farm Mut. Auto Ins. Co., 137 Ohio St.3d 373, 2013-Ohio-4733, the trial court abused its discretion. Judgment reversed and cause remanded.

negligence action against political subdivision summary judgment R.C. 2744.02 immunity proprietary function no evidence of duty

NEGLIGENCE/SLIP/FALL – PREMISES LIABILITY – NEGLIGENCE PER SE: A small riser at the entrance to defendant's bar was an open-and-obvious hazard where the nature of the danger posed was immediately apparent on ordinary inspection: Plaintiff's prior, successful traversal put him on notice of the existence of the hazard. Building code violations are irrelevant to plaintiff's negligence claim where the hazard is open and obvious because the open-and-obvious nature of the hazard obviates the landowner's duty to warn of the danger. Municipal codes that only set forth general, abstract duties cannot support a claim of negligence per se to survive summary judgment, plaintiff must adduce at least some evidence of a violation of a municipal code that sets forth a definite standard for compliance.

CIV.R. 12(B)(6) — CONTRACTS — IMPLIED DUTY OF GOOD FAITH: The trial court properly dismissed plaintiffs-residents' breach-of-contract claim against defendant-village because plaintiffs-residents did not allege the breach of an express contractual provision, necessary to recover for breach of the duty of good faith and fair dealing. The trial court erred by dismissing a breach-of-contract counterclaim brought by intervening defendants/third-party plaintiffs against plaintiffs-residents, who allegedly challenged an application for the construction of a neighboring house in zoning proceedings "on the basis of inadequate lot frontage," a ground prohibited by a future-disputes provision in a contract that plaintiffs-residents entered into with intervening defendants/third-party plaintiffs' predecessor-in-interest, because the allegations and the contract did not on their face show an insurmountable bar to relief.

Witness's reference to defendant's "incarceration," while inappropriate, did not cause substantial prejudice to defendant's case, where the reference was isolated, the court gave a curative instruction and the defendant himself made repeated references to his criminal history. Also, defendant's convictions for felonious assault and tampering with evidence were supported by legally sufficient evidence and were not against the manifest weight of the evidence.

Trial court properly dismissed appellants' complaint under Civ.R. 12(B)(6) because it correctly determined that the General Assembly had authority under the Ohio Constitution to enact Section 29 of 2020 H.B. 197, Section 29 did not violate the Due Process Clause of the United States Constitution, and it did not appear beyond a reasonable doubt that Section 29 was incompatible with constitutional provisions.

Attorney fees Child support

Magistrate correctly determined that State ex rel. Russell v. Indus. Comm., 82 Ohio St.3d 516 (1998) does not apply to case involving the Industrial Commission's determination of a relator's request for an initial period of temporary total disability compensation and not the termination of an established temporary total disability compensation award. Objection to magistrate's decision overruled relator's request for writ of mandamus denied.

Judgment affirmed. The trial court did not err by affirming the order of the Ohio Board of Nursing suspending appellant's nursing license for statutory and regulatory infractions arising from the care of two terminally ill patients. Because the Board found that appellant's actions did not have the objective purpose of "diminishing the qualified patient's pain or discomfort and not for the purpose of postponing or causing the patient's death," he was not entitled to immunity under R.C. 2133.11(A)(6), regardless of his subjective intent. Appellant waived his arguments concerning the purported inconsistency of the Board's findings by not raising them before the trial court.

Court of Claims did not err in granting summary judgment in favor of appellees on appellants' claims for racial discrimination, hostile work environment, and retaliation.

Trial court's finding that property transfers were the result of undue influence is against the manifest weight of the evidence where trial court incorrectly finds the date of the transfer, where the presumption of undue influence was rebutted by attestation that the transfer was a free act of will, where the plaintiff testified that she was not subject to undue influence, and where no evidence was submitted regarding the influence or pressure placed upon the plaintiff by the defendants.

INSURANCE — CONTRACTS — SUMMARY JUDGMENT: The trial court did not err in entering summary judgment for an insurer on the issue of uninsured and underinsured motorist ("UM") coverage where the unambiguous terms of the policy excluded certain tortfeasors' vehicles from the UM portion of the policy, including a vehicle owned by a named insured, the undisputed evidence demonstrated that plaintiff was injured when a passenger in her own vehicle, and plaintiff failed to demonstrate enforcement of the provision violated the clear public policy of the state or that a genuine issue of material fact existed with respect to unconscionability or mistake.

The trial court did not err in rejecting appellant's claim that the violent offender registration scheme in Sierah's Law was unconstitutionally retroactive as applied to him. Appellant failed to distinguish his "as-applied" claim from a facial retroactivity challenge that the Supreme Court of Ohio had already rejected in State v. Hubbard, 167 Ohio St.3d 77, 2021-Ohio-3710, 189 N.E.3d 720. Further, appellant waived his ex post facto claim by failing to assert it in the trial court. In this regard, there was no plain error or any error, as the Ex Post Facto Clause only applies to criminal cases. Here, while appellant's motion seeking to avoid registration in the violent offender database was brought in his criminal case (which ended many years earlier), the violent offender registration scheme is remedial and civil, not criminal. The trial court did err in failing to consider appellant's due process and equal protection claims, but the error was not prejudicial. First, appellant's due process argument is simply an attempt to reframe the retroactivity argument that has already been rejected. Second, in an offender registration situation, the Supreme Court of Ohio had previously rejected the same equal protection argument that appellant is making. In addition, appellant has not offered any reasons why the legislature acted irrationally in enacting Sierah's Law, nor has he explained how the government lacked a legitimate purpose by distinguishing between violent offenders who were imprisoned at the time the legislation was effective and those who had been released from prison. Judgment affirmed.

The trial court did not err in overruling appellant's motion to dismiss the charges against him based on a statutory speedy-trial violation. In light of various tolling events, appellant was brought to trial within the speedy-trial deadline. Appellant's convictions for tampering with records, telecommunications fraud, and obstructing official business were supported by legally sufficient evidence and were not against the manifest weight of the evidence. The record does not portray ineffective assistance of counsel based on appellant's trial attorney's failure to retain an expert witness, to cross examine a detective, or to admit into evidence a full report generated from downloaded content from appellant's Google account. Judgment affirmed.

Abuse-of-process church subject-matter jurisdiction ecclesiastical abstention doctrine secular hierarchical congregational church discipline church procedures dismiss suspension. The trial court erred in denying the defendants' motion to dismiss for lack of subject-matter jurisdiction. The trial court lacked subject-matter jurisdiction pursuant to the ecclesiastical abstention doctrine because the resolution of the plaintiff's abuse-of-process claim is inextricably entangled with ecclesiastical concerns.

Speedy Trial - Manifest Weight - Aggravated Burglary - Reagan Tokes