Volume 209 — North Eastern Reporter, Third Series

Resentencing limited remand R.C. 2953.08(G)(2) felony sentence R.C. 2929.14(C) consecutive sentences statutory findings clearly and convincingly supported by the record sentencing range separate sentence for each offense improper purpose sentencing-package doctrine. The trial court properly conducted resentencing within the narrow context of determining whether to impose consecutive sentences and making findings related thereto. Further, the trial court did not impose sentences under a sentencing package. Finally, arguments regarding the sentences that were not raised in the first appeal are therefore barred by res judicata.

In a dispute over easements, the trial court did not err in denying appellant's motion for sanctions under R.C. 2323.51, as cross-appellant's motion for contempt was not frivolous. The trial court correctly noted that a reasonable lawyer could have argued that the circumstances surrounding a prior injunction granted against appellant were similar to the circumstances that led cross-appellant to file the contempt motion. The trial court also did not err in denying cross-appellant's contempt motion, as the appellant had not yet taken any action. Instead, appellant had simply threatened to take action concerning the easements involved in the prior injunction. Judgment affirmed.

In city's quiet title action against trust that was successor-in-interest to titleholder of real property, trial court properly concluded that city's predecessor-in-interest adversely possessed land by using it as restaurant parking from 1971-1993, thereby divesting trust of ownership interest. R.C. 2305.04's 21-year statute of limitations did not apply to quiet title action brought by possessor of property. Court was not required to resolve factual issues not material to trust's ownership interest.

The trial court did not abuse its discretion in excluding an e-mail sent by the victim to the appellant days after the incident. The timing, tone, and content of the e-mail demonstrated its irrelevance. Appellant's jury instructions on "mistake of fact" and "accident" misstate the law. The jury was free to believe the victim and corroborating testimony over appellant's testimony.

A trial court does not abuse its discretion by ordering production of an attorney-client communication that falls within the scope of a previous privilege-waiver determination, despite the communication having been inadvertently disclosed.

EXPERT TESTIMONY – SUMMARY JUDGMENT – CIV.R. 26 – MOTION FOR RECONSIDERATION The trial court did not abuse its discretion in striking the expert affidavit filed by plaintiffs in response to defendants' motions for summary judgment, because it was untimely and was not a proper supplement to the initial expert reports. The trial court did not err in granting summary judgment in favor of defendants where plaintiffs did not put forth the required expert testimony on the applicable standard of care, which was required to create a genuine issue of material fact and where plaintiffs did not disclose their intent to use certain experts of defendants. The trial court did not err in considering plaintiffs' motion for reconsideration where it was filed after the court orally announced its decision, but before the court journalized its final judgment entry or in denying plaintiffs' motion for reconsideration where plaintiffs did not demonstrate that the proffered basis for reconsideration would have impacted the court's conclusion because the court stated several other reasons for striking plaintiffs' affidavit.

In ruling on appellant's motion to withdraw her guilty plea due to the sentencing court's failure to advise appellant her conviction may result in deportation or exclusion from admission to the United States, the trial court had the discretion to consider appellant's 11-year delay in filing the motion as a primary factor supporting denial of the motion. The trial court did not err when it refused to apply Padilla in assessing trial counsel's performance during the plea process because Padilla was decided well after appellant's conviction became final, and both the Supreme Court of the United States and this court have held that Padilla may not be applied retroactively. Even if trial counsel had a duty to advise appellant a conviction may result in her deportation or exclusion from admission to the United States, appellant's post hoc assertion that she would not have pleaded guilty to permitting child abuse, if so advised, lacks credibility in light of her lengthy delay in filing the motion, the overwhelming evidence of appellant's guilt, and the possibility of a much longer prison sentence if appellant were found guilty at trial. Judgment affirmed.

R.C. 2907.22 promoting prostitution prison attire during trial manifest weight of the evidence. The record does not support that appellant was compelled to wear prison attire during trial or that he was prejudiced thereby. Appellant's conviction for promoting prostitution was not against the manifest weight of the evidence.