Volume 258 — North Eastern Reporter, Third Series

judgment reversed and remanded.

The trial court erred as a matter of law by concluding that the open door was not an open and obvious hazard. However, the trial court did not err by finding that the Zamboni was not an open and obvious hazard and was the cause of Ms. George's injuries. Because we find that the trial court erred as to one of the two identified causes of Ms. George's injuries, it is unclear how our decision would impact the allocation of fault and Ms. George's damages. Therefore, we remand this matter for further consideration to determine what, if any, impact our decision has on the comparative negligence calculation. Judgment affirmed in part and reversed in part; cause remanded with instructions.

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

SUMMARY JUDGMENT — R.C. 2307.60 — CIVIL RECOVERY FOR CRIME VICTIMS — CHILD ENDANGERMENT — WITNESS INTIMIDATION — OBSTRUCTING JUSTICE — UNJUST ENRICHMENT: The trial court did not err in granting summary judgment to defendant-employer and denying plaintiff-employee's motion for summary judgment on plaintiff-employee's claim for damages as a crime victim based on defendant-employer's alleged act of witness intimidation where plaintiff-employee failed to present evidence of an underlying criminal act and was therefore not a "witness" under the meaning of the intimidation statute. The trial court did not err in granting summary judgment to defendant-employer on plaintiff-employee's civil claim for obstructing justice where plaintiff-employee failed to present evidence of an underlying crime and therefore did not establish all elements of the obstructing-justice statute and plaintiff-employee was otherwise not a "victim" of the crime of obstructing justice because the State, and not an individual, is the victim of obstructing justice. The trial court did not err in denying plaintiff-employee's motion for summary judgment and granting defendant-employer summary judgment on plaintiff-employee's unjust-enrichment claim where plaintiff-employee failed to present any evidence of her damages: plaintiff-employee was not entitled to an adverse inference against defendants-employers based on defendants-employers' claimed failure to turn over receipts submitted by plaintiff-employee where plaintiff-employee did not file a motion to compel, defendants-employers did not violate a court order, and plaintiff-employee failed to establish defendants-employers wrongfully withheld the receipts from plaintiff-employee.

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.

Trial court erred in designating father, the sole residential parent and legal custodian of the parties' children, the obligor and ordering him to pay child support to the mother.

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.

Judgment reversed and cause remanded for a new trial. During a jury trial in which defendant was charged with one count of nonsupport of a dependent under R.C. 2919.21, the trial court erred by admitting the entirety of a divorce decree that contained dozens of hearsay and double hearsay statements prejudicial to defendant. Only three pages of the forty-page document were relevant to the issue of the amount of child support defendant allegedly failed to pay. The remainder of the document contained statements that were inadmissible under Evid.R. 404 because any probative value they held was outweighed by the danger of unfair prejudice, particularly because they were the product of another judge's fact finding that invited the jury to substitute its own credibility assessment with those made by the domestic court judge overseeing the divorce. Although defendant failed to timely object on any grounds other than relevance, there was a substantial probability that the admission of the divorce decree affected the outcome of the trial, warranting reversal under an plain error standard.

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.