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.

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.

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

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.