Volume 253 — North Eastern Reporter, Third Series

Following the settler's death, the beneficiaries of a trust filed a motion to remove appellant as trustee, and the probate court granted the motion. The probate court reasonably concluded that appellant had not complied with his duties as trustee, and it did not abuse its discretion in removing him as trustee. Appellant's due process rights were not violated by presentation of new arguments at the hearing. Judgment affirmed.

Zmuda, J., writing for the majority, finds that the trial court did not err in denying appellant's motion to enforce a settlement agreement as no such settlement is permissible as a matter of law. The trial court did not err in assessing damages to the estate. Trial court erred in awarding attorney's fees to appellees. Judgment affirmed in part and reversed in part.

EXTRAORDINARY WRITS – petition for writ of mandamus brine injection wells suspension order Ohio Department of Natural Resources oil and gas division shut down of primary well categorical taking must demonstrate an elimination of all economically viable use respondents presented evidence of other reasonable alternative uses relator did not suffer categorical taking partial regulatory taking Penn Central factors ad hoc inquiry claimant suffered specific economic impact site has generated minimal revenue since suspension order reservoir engineer capacity division's expert more credible reasonable and distinct investment-backed expectations factually driven analysis regulatory regime in existence at time of acquisition of interest relators operated in a highly regulated industry relator was aware of the problem that spawned the regulation at the time it acquired its interest relator could not have reasonably anticipated the manner in which respondents would address its repeated proposals for re-start character of the regulation reasonable no bad faith does not weigh heavily in respondents' favor balancing factors regulation effected partial-regulatory taking respondents must initiate appropriation proceedings damages calculation limited to capacity analysis.

Summary judgment Civ.R. 56(C) negligence duty workmanlike manner contract tort privity. Judgment affirmed. Appellants' negligence cause of action fails because the evidence shows that appellee's duty arose from a contract, not from the common-law duty of workmanlike manner. When the duty allegedly breached by a defendant arises out of contract, the cause of action is one of contract, not tort. Further, that duty did not extend to the appellants because there is no privity of contract. Therefore, we find that there is no genuine issue of material fact and appellees were entitled to judgment as a matter of law.

Judgment affirmed. The trial court properly granted Ohio Department of Rehabilitation and Correction's ("ODRC") motion for summary judgment because plaintiff's defamation claims were subject to either an absolute or qualified privilege, and plaintiff failed to present any Civ.R. 56 evidence demonstrating that ODRC made the qualifiedly privileged statements with actual malice. Plaintiff did not file a motion to disqualify the trial court's magistrate for bias, the trial court was not required to hold an oral hearing on the motion for summary judgment, and the trial court properly considered the Civ.R. 56 evidence in the record. The trial court addressed the reason plaintiff was terminated from his position and the court did not err by failing to address irrelevant facts. The trial court was not required to ask the parties to produce evidence and plaintiff did not file a Civ.R. 56(F) motion.

Medical malpractice; wrongful death; saving statute R.C. 2305.19, revised in 2004; complaint filed a third time after two previous dismissals not on the merits; trial court dismissed because saving statute could be used only once and statutes of limitation had expired; prior law limiting saving statute to one-time-use overruled by McCullough v. Bennett, 2024-Ohio-2783, decided July 24, 2024; dicta in Thomas v. Freeman, 79 Ohio St.3d 221 (1997) based on prior version of saving statute; saving statute no longer dependent on expiration of statute of limitations; both refilings of the complaint were within requirements of the current version of saving statute; trial court judgment reversed; no attorney fees because complaint reinstated and remanded to trial court for further proceedings.

REALLOCATION OF PARENTAL RIGHTS AND RESPONSIBILITIES; SUBJECT MATTER JURISDICTION; UNIFORM CHILD CUSTODY JURISDICTION AND ENFORCEMENT ACT; R.C. 3127.15(A); DOCTRINE OF JUDICIAL ESTOPPEL; CHANGE OF CIRCUMSTANCES; BEST INTERESTS; R.C. 3109.04. The trial court did not abuse its discretion by exercising its jurisdiction under the UCCJEA since it possessed home-state jurisdiction under R.C. 3127.15(A)(1). Petitioner-appellant is judicially estopped from raising her jurisdictional argument since she conceded the facts underlying the legal conclusion that Ohio was [the child's] home state at the time this matter commenced. The trial court did not abuse its discretion by modifying the shared-parenting decree and by concluding that it is in child's best interest for petitioner-appellee to have residential and legal custody of the child.

R.C. 3105.011; Civ.R. 75. Trial court did not err by using equitable powers to modify visitation.

summary judgment, light most favorable to non-moving party, former Evid.R. 702, expert testimony

Trial court judgment denying motion for relief from judgment reversed and remanded. Osowik.

Magistrate did not err in finding appellant's uncashed wage checks from his LLC were personal earnings subject to garnishment and did not err in finding appellant had received funds from the sale of his butcher shop that should have been paid to the appellees for tort damages owed. Trial court erred in calculating the total amount appellant had to pay appellees to purge the contempt order when it failed to cap the garnishment of his personal earnings at 25 percent in accordance with R.C. 2716.02.