Volume 258 — North Eastern Reporter, Third Series

RESTITUTION – R.C. 2929.28: The statute governing misdemeanor restitution, R.C. 2929.28, did not require the trial court to consider the defendant's ability to pay the restitution amount imposed as part of his sentence. Judgment affirmed.

Summary judgment; damages

SUMMARY JUDGMENT ON SEWER BACKUP - CITY HAS IMMUNITY

CONSTITUTIONAL LAW/CRIMINAL — COUNSEL – SEARCH AND SEIZURE – FOURTH AMENDMENT– PROTECTIVE SWEEP – INEVITABLE DISCOVERY – SEARCH WARRANT – AFFIDAVIT – SUFFICIENT EVIDENCE: Trial counsel was constitutionally ineffective for failing to challenge the constitutionality of a consent search and protective sweep of the home. [But see DISSENT: Defendant was not prejudiced by any alleged ineffectiveness of trial counsel for failing to challenge the constitutionality of the search and protective sweep of the home because defendant lacked standing to contest the search of a safe found in the home, the protective sweep was reasonable under the Fourth Amendment, and the evidence in the safe would have inevitably been discovered.] The trial court did not err when it denied defendant's motion to suppress evidence because officers searched the home under a good-faith belief that a tenant had authority to authorize a search of the home, there was probable cause to issue a warrant to search a safe recovered from the home where the facts in the affidavit established a nexus between defendant and the drugs in the safe, and competent and credible evidence supported the trial court's finding that the officer did not misidentify the tenant as a homeowner in reckless disregard for the truth. [See CONCURRENCE: While the search of the home was conducted in good faith, it is not necessary to reach that issue because the safe would inevitably have been discovered.] The State's evidence was sufficient to prove that drugs recovered from a safe belonged to defendant because officer testimony and photographs of the contents of the safe showed papers belonging to defendant in the safe alongside drugs and drug paraphernalia. [See CONCURRENCE: The evidence was sufficient to show that defendant had possessed the drugs, and his convictions were not against the manifest weight of the evidence.]

The trial court properly granted summary judgment to appellee on appellant's negligence claim based on respondeat superior because the negligence claim against appellee's employee had previously been dismissed due to the expiration of the statute of limitations. The trial court properly granted summary judgment to appellee on appellant's negligence claim based on premises liability because appellee did not have possession and control of the premises where the injury occurred and appellant was engaged in inherently dangerous work. Judgment affirmed.

Judgment affirmed. The court of claims did not err by granting appellee's motion for summary judgment based on res judicata. Appellants' initial complaint for "intentional negligence," premised on an alleged violation of Sup.R. 42(C), involved the same parties and arose from the same transaction or occurrence at issue in appellants' subsequent complaint for "negligence," also premised on an alleged violation of Sup.R. 42(C). The court's decision granting appellee's Civ.R. 12(B)(6) motion to dismiss the initial complaint constituted an adjudication on the merits.

motion for return of property, equitable remedy, . R.C. 2981.11(A)

Breach of contract; small claims; evidence; magistrate's decision; objections; damages; failure to appear; Civ.R. 8(D); Civ.R. 10(D)(1); Evid.R. 101(D)(8); Civ.R. 53(D)(4)(d); Civ.R. 53(D)(3)(a)(ii); factual findings; legal conclusion; remand; hearing. Reversed the decision of the lower court that adopted a magistrate's decision ruling in favor of the defendant in a small claims action for breach of contract where the defendant never appeared in the action, the plaintiff provided testimony and evidence to prove his claim, and the lower court's legal conclusion was erroneous. The case was remanded to the lower court for a hearing on damages.

physician-patient privilege; R.C. 2317.02(B)(1); HIPAA; discovery; motion to compel

The trial court committed plain error by not calculating and notifying appellant of the amount of jail-time credit to which he was entitled. The trial court did not err in denying appellant's Crim.R. 29 motion; there was sufficient evidence to support his conviction for domestic violence. The trial court did not abuse its discretion in permitting the introduction of the video footage of the victim's statements to officers from a police officer's body camera pursuant to the excited utterance exception under Evid.R. 803(2). Judgment affirmed in part, reversed in part, and remanded for resentencing on jail-time credit only.

Mayle - Fact-finder's rejection of defendant's claim of self-defense was not against the manifest weight of the evidence where the state presented testimony from two witnesses that defendant was at fault in creating the situation giving rise to the affray

CIVIL - township zoning resolutions; injunction; R.C. 519.24; summary judgment; short-term rental; single one-family dwelling; home occupation; permanent habitable floor area; Adm.Code 3701-16-14(A)

Summary judgment granted on service of 180-day letter by FedEx

online ad; soliciting; bench trial; sufficiency and weight of evidence.

Judge Duhart. Arbitration

CIVIL LAW - modification of arbitration award; R.C. 2711; R.C. 2711.10; R.C. 2711.11; statute of limitations on motion to vacate or modify arbitration award; an arbitration award must be confirmed without a showing of fraud, miscalculation, corruption, or misconduct.

State's appeal. The trial court properly granted appellee's motion to dismiss on speedy trial grounds. Appellee's pending motion during one of the disputed time periods (70 days) did not toll the speedy trial time under R.C. 2945.72(E), because the trial court's delay in resolving the motion was not reasonable. Given the State's concession that an additional 46 speedy trial days had elapsed, the State did not bring appellee to trial within 90 days, as required for a second-degree misdemeanor. Judgment affirmed.