Court Rulings

Final order provisional remedy discovery order R.C. 2505.02 adequate remedy Civ.R. 26 attorney work product work-product doctrine tax returns. Appeal from a discovery order that purported to require the disclosure of attorney work product and tax returns was found not to be a final, appealable order under R.C. 2505.02(B)(4) where appellants did not show that appeal following final judgment would not be an adequate remedy.

Reversed and remanded as to BOLI's conclusion that Kaiser, Mitchell, and Struhar aided and abetted sexual harassment and were joint and severally liable; otherwise affirmed.

The plaintiff town sought to recover damages from the defendant contractor for breach of contract. The plaintiff owned a vacant brass mill factory that was contaminated with, inter alia, polychlorinated biphenyls (PCBs). The plaintiff, on the advice of consultants, applied to the United States Environmental Protection Agency (EPA) for permission to demol- ish and clean up the property and engage contractors to perform the work. The plaintiff issued a notice inviting prospective contractors to provide bids for the third phase of the project, which involved the demolition, abatement and remediation of the property. The notice indi- cated that the contractor would be allowed to keep the scrap value of any structural steel salvaged from the site. The plaintiff made all public information about the project available to prospective bidders, including a report from one of its consultants that referenced the presence of PCBs throughout the building. The plaintiff also provided a letter to all prospective bidders clarifying that the selected contractor would be responsible for the sampling and disposal of any PCB contaminated material. The defendant submitted the winning bid for the contract, in which it did not allocate any funds for the remediation or disposal of any contaminated structural steel on the site, as it believed that the steel was not contaminated and could be recycled without remediation. Once selected, the defendant executed a certification acknowledging that it had read and agreed to abide by all conditions set forth in the EPA's approval letter for the third phase of the project, which included attachments regarding the cleanup of PCB contaminated material and correspondence between the EPA and the plaintiff regarding the PCB contamination of various materials, including steel beams. The parties then entered into a contract for the phase three work, which expressly incorporated the EPA approval letter and established a 140 day deadline for the defendant to

Summary judgment Civ.R. 56 fraudulent misrepresentation and concealment R.C. 5302.30 residential property disclosure form caveat emptor material defects building and housing code violations patent defects latent defects attorney fees punitive damages R.C. 2315.21(C). Trial court did not err in granting summary judgment as to liability in favor of buyers on their fraud claim based on seller's material misrepresentations in residential property disclosure form. Even assuming that certain of the defects/code violations at issue were patent defects that were observed (or should have been observed) by buyers, that did not preclude seller from liability for, and for buyers from properly recovering damages resulting from, seller's fraudulent concealment of and misrepresentations relating to any material, latent defects/code violations in the residential property disclosure form. Trial court did not err or abuse its discretion in awarding buyers their attorney fees after finding that they were entitled to recover punitive damages. Attorney fees may be awarded to the prevailing party as an element of compensatory damages when the factfinder finds that punitive damages are warranted. Seller did not challenge trial court's punitive damages award or its determination that buyers were entitled to recover punitive damages on appeal and did not otherwise point to anything in the record that showed that trial court's finding that seller exhibited a conscious disregard for the rights and safety of buyers that had a great probability of causing substantial harm was not supported by competent, credible evidence.

affirming denial of father's 2019 motion to modify parental rights and responsibilities weighing of best interest in trial court's discretion prior divorce and custody granted by same Ohio court, which properly exercised jurisdiction over modification motion where mother still lived in Ohio delay caused by father father was not denied right to redress his motion for contempt against mother because trial court granted father's 2021 motion for custody of the son, we remand to consider termination of child support and related matters.

Court of Claims did not err by granting summary judgment in favor of employer on race and age discrimination claims. Appellant failed to demonstrate that employer's proffered reason for not hiring her was pretext for race or age discrimination. Appellant was not a plainly superior candidate for the position, given the candidates' relative qualifications, and she failed to demonstrate other probative evidence of discrimination. Judgment affirmed.

The dismissal of appellant's complaint was partly based on incorrect factual conclusions related to the application of judicial estoppel the trial court erred in dismissing the complaint. Furthermore, an alleged lack of standing due to appellant's Chapter 13 bankruptcy filing does not provide an alternate reason to affirm the dismissal. Appellant had standing when she filed her complaint alleging that appellees had caused her injury and damages by unlawfully terminating her employment, by failing to pay wages, by failing to pay minimum wages, and by illegally accessing her electronically-stored information. At that point, appellant had not yet filed for bankruptcy, and standing existed. Whether the bankruptcy trustee subsequently became a real party in interest, depriving appellant of standing, or whether appellant had a concurrent interest for purposes of standing due to differences between Chapter 7 and Chapter 13 bankruptcy proceedings is for the trial court to decide on remand, along with the issue of judicial estoppel. Judgment reversed and remanded.

Motion for judgment on the pleadings Civ.R. 12 question of law de novo cross-claim pro se litigant App.R. 12 App.R. 16 motion to withdraw as counsel plain error right to counsel negligence injury proximate cause negligent hiring breach of contract hostile work environment wrongful termination. The trial court did not commit plain error in granting the motion to withdraw from appellant's representation filed by the attorneys for the childcare center. Appellant did not have a right to counsel in the civil proceedings in the trial court. The assertions and allegations in appellant's cross-claims cannot be read to have pled any actionable claims against the childcare center, or the childcare center's owner, manager, or employees. Accordingly, the trial court properly granted the childcare center's motion for judgment on the pleadings.

SUMMARY JUDGMENT – CIV.R. 56 – NONCOMPETE CLAUSE: The trial court erred in granting defendant employer's motion for summary judgment in a case involving a noncompete provision in plaintiff physician's employment contract where the court required plaintiff to prove his claim by clear and convincing evidence.

Elections—Prohibition and Mandamus—Writs sought to remove a zoning referendum from the November 2, 2021 ballot—Relators failed to show that board of elections abused its discretion or clearly disregarded applicable law in denying their protest to the referendum petition—Writs denied.

Writ of procedendo writ of mandamus delay in ruling Ohio Sup.R. 40 R.C. 2701.02 undue delay. A request for writ of procedendo was granted where respondent unduly delayed in ruling on matters submitted for determination over 120 days prior to the filing of the action and failed to timely attend to other matters filed after the hearing was conducted. Because the ruling fully disposed of the action, a request for writ of mandamus was denied as moot.

Motion to stay motion to compel arbitration arbitration agreement motion to dismiss jurisdiction venue forum selection clause res judicata final appealable order R.C. 2711.02 hearing R.C. 2711.03 unconscionability procedural unconscionability substantive unconscionability. The trial court did not err denying appellant's motion to stay proceedings and compel arbitration, or alternatively to dismiss for lack of personal jurisdiction, subject matter jurisdiction, and improper venue. The arbitration agreement in this case is both procedurally and substantively unconscionable. Enforcement of the forum selection provision would be unreasonable and unjust, and effectively deny appellee its day in court. Based on the totality of the circumstances in this case, the trial court's failure to hold an evidentiary hearing on appellant's motion to stay and compel arbitration was not reversible error. Res judicata did not bar appellee from challenging the enforceability of the arbitration agreement in the second civil action.

Immunity of political subdivision employee judgment on the pleadings reverse racial discrimination R.C. 2744.03(A) R.C. 2744.09. Plaintiff's complaint for claims of reverse racial discrimination, harassment, and retaliation contained sufficient allegations for the liability of defendant political subdivision employee pursuant to the exceptions to immunity set forth in R.C. 2744.03(A)(6)(a) and (b). The trial court properly denied defendant's motion for judgment on the pleadings.

Trial court erred granting petition to compel arbitration. Judgment reversed. Statutory interpretation, arbitrability, de novo review, findings of fact, abuse of discretion

The trial court did not err in dismissing appellant's malpractice complaint against appellee chiropractor individually for failure of service of process. Even if appellant created a presumption of service, appellee chiropractor rebutted it with uncontroverted evidence that service had been completed at a wrong address, signed by a person he did not know. The trial court erred, however, in entering summary judgment for appellee chiropractic office on the basis that it could not be liable where appellant's claim against the employee chiropractor was dismissed. Under the doctrine of respondeat superior, appellant may pursue the undisputed employer of the employee chiropractor even though the employee has been dismissed from the case for lack of service of the complaint. The case law appellee chiropractic office cites to the contrary involves the application of vicarious liability for agency-by-estoppel or other relationships and not traditional employer-employee respondeat superior. Judgment affirmed in part, reversed in part, and remanded.

Jurisdiction of courts of common pleas—Authority of R.C. 124.34—R.C. 124.34 authorizes classified employees to appeal violations to the State Personnel Board of Review but not to the court of common pleas—Judgment reversed and cause remanded.

The plaintiff appealed from the decision of the Compensation Review Board, which affirmed the decision of the Workers' Compensation Commis- sioner awarding the plaintiff benefits pursuant to statute (§ 31-308 (b)) for a 23 percent permanent partial disability on the basis of the functional capacity of his transplanted heart. While employed as a police officer for the named defendant, the city of Milford, the plaintiff was diagnosed with giant cell myocarditis and underwent a heart transplant. The plain- tiff thereafter filed a claim for benefits pursuant to the statute (§ 7-433c) governing compensation for municipal police officers with hypertension or heart disease. The commissioner issued a finding and award, determining that the plaintiff had reached maximum medical improve- ment approximately three years after receiving the transplant and that he was entitled to benefits for a 23 percent permanent partial disability of the transplanted heart. In affirming the commissioner's finding and award, the board concluded that the commissioner had properly consid- ered the function of the transplanted heart in awarding benefits rather than awarding the plaintiff 100 percent permanent partial disability bene- fits on the basis of the removal and complete loss of his native heart. On the plaintiff's appeal from the board's decision, held that the board properly considered the functionality of the transplanted heart after a finding of maximum medical improvement, rather than the total loss of the plaintiff's native heart, in fashioning the specific indemnity award because the plaintiff had not suffered a complete loss of that organ within the meaning of § 31-308 (b): although the language of § 31-308 (b) was ambiguous with respect to whether permanent partial disability benefits were to be based on the complete loss of a native organ or the loss of use of a transplanted organ, the legislative history surrounding § 31-308 (b) evinced an intent to balance the goals of protecti

Civ.R. 12(C) motion for judgment on the pleadings Civ.R. 12(E) motion for a more definite statement Civ.R. 12(F) motion to strike legal malpractice claim R.C. 2305.11 cognizable event termination of the attorney-client relationship competency and equitable estoppel. The trial court correctly found a Civ.R. 12(E) motion for a more definite statement could not be directed to a nonresponsive pleading and a Civ.R. 12(F) motion to strike, filed with regard to an answer, was moot when the answer satisfied Ohio's notice pleading requirements. A legal malpractice complaint was properly dismissed pursuant to a Civ.R. 12(C) motion for judgment on the pleadings when the complaint was filed more than one year after (1) the cognizable event that alerted plaintiff-appellant her attorney may have committed an improper act, and (2) termination of the attorney-client relationship. We remand plaintiff-appellant's claim against codefendant-appellee that did not file a Civ.R. 12(C) motion or otherwise seek dismissal of the case, and therefore, the cause of action was unresolved by the trial court.

Res judicata—Class-action settlement—Opt-out provision—Federal court's determination of the class bound all nonexcluded class members to settlement agreement—State court erred in conducting an analysis of the class—When a party was not excluded from a class-action suit by a federal court that determined the class, the question whether the party opted out of the class is res judicata.

Arbitration agreement race discrimination retaliation motion to stay litigation pending arbitration procedurally unconscionable. - Trial court did not abuse its discretion in granting employer's motion to stay litigation pending arbitration of plaintiff's race discrimination and retaliation claims where plaintiff failed to demonstrate that his claims were not subject to arbitration and that the agreement was procedurally unconscionable.

GOVERNMENTAL IMMUNITY – R.C. CHAPTER 2744 – JUDGMENT ON THE PLEADINGS – TWP/COUNTY/STATE: Where a child was returned to her parents' custody where she died, the trial court properly granted the motion for judgment on the pleadings filed by Hamilton County, the Hamilton County Commissioners, and the Hamilton County Department of Job and Family Services in a wrongful-death case in which the claimants failed to allege sufficient facts to establish that the agency defendants were not entitled to immunity pursuant to R.C. 2744.02. The trial court properly granted the motion for judgment on the pleadings filed by employees of the Hamilton County Department of Job and Family Services in a wrongful-death case where the claimants failed to allege specific facts, offering only general allegations, to establish that the employees were not entitled to immunity pursuant to R.C. 2744.03(A)(6). [But see DISSENT: The amended complaint alleged sufficient facts to establish that the employees ignored significant evidence of pervasive abuse such that the amended complaint sufficiently supports the allegation that the employees acted in a wanton or recklessly manner, which would reimpose liability pursuant to R.C. 2744.03(A)(6).]

CIVIL - summary judgment Civ.R. 56 political subdivision immunity R.C. Chapter 2744 personal injury governmental and proprietary functions exceptions to immunity negligent performance of proprietary functions R.C. 2744.02(B)(2) specific activity that caused injury maintenance of public grounds regulating the use of public grounds R.C. 2744.01(C)(2)(e) public peace, health, safety or welfare not customarily engaged in by nongovernmental persons R.C. 2744.01(C)(1)(c) obligation of sovereignty R.C. 2744.01(C)(1)(a) common good of all citizens of the state R.C. 2744.01(C)(1)(b) physical defect R.C. 2744.02(B)(4) defense to liability exercise of judgment or discretion R.C. 2744.03(A)(5) inadvertence, inattention, or unobservance employee of political subdivision individual capacity wanton or reckless manner R.C. 2744.03(A)(6)(b) issue of fact.

The trial court abused its discretion in issuing default judgment against a party as to whom the complaint stated no claim on which relief could be granted. Claims for negligent hiring and respondeat superior do not run against an individual who is not the alleged wrongdoer's employer, and the complaint failed to make factual allegations that support a recklessness theory on which to proceed against a father for the alleged actions of his adult son.

ten-year construction statute of repose in R.C. 2305.131 applies to contract and tort claims pursuant to Supreme Court's New Riegel case statute does not violate to right-to-remedy clause school district made new argument in supplemental brief that a claim accruing within the statute of repose's ten-year period is not subject to the statute, but this argument was not specified to the trial court alternatively, the New Riegel concurrence is persuasive on this issue.

ADMINISTRATIVE APPEAL - R.C. 3319.16 lower court did not abuse its discretion termination of teaching contracts for violation of hazing policy during band camp "fairly serious matters" "good and just cause" for termination Daugherty factors preponderance of the evidence, not manifest weight, was appropriate standard for Board of Education's rejection of a referee's findings of fact.

CONTRACTS – EMPLOYER-EMPLOYEE--TRADE SECRETS: The trial court did not err by dismissing pursuant to Civ.R. 12(C) a breach-of-contract claim by an employer against an employee where a later agreement executed by the parties constituted a complete release by the employer of the employee's obligations under the contract. The trial court erred by dismissing pursuant to Civ.R. 12(C) a claim under the Ohio Trade Secrets Act, R.C. 1333.61 through 1333.69, on the basis that an employee had been released from his contractual obligations with respect to confidentiality, because the presence of an existing confidentiality agreement is not required to find that a trade secret exists, and the plaintiffs had alleged sufficient facts to support the elements of a trade secret under the Act. The trial court erred by dismissing pursuant to Civ.R. 12(C) a claim that an employee breached his duty of loyalty or good faith on the basis that the employee had been released from his contractual obligations under an employment agreement, because an employee's duty of good faith and loyalty exists regardless of whether an employment agreement exists.

The petitioner, who previously had been convicted on a guilty plea of two counts of murder and one count of assault in the first degree, sought a writ of habeas corpus, claiming, inter alia, ineffective assistance of trial counsel. During the trial of the present case, the petitioner and A, the petitioner's grandmother, both testified that they met with the petitioner's trial counsel, who threatened the petitioner that A and the petitioner's cousin would go to prison if he did not plead guilty. The habeas court rendered judgment denying the amended habeas petition and, thereafter, denied the petition for certification to appeal, and the petitioner appealed to this court. Held that the habeas court did not abuse its discretion in denying the petition for certification to appeal; the petitioner's claims essentially challenged the determination of the credibility of witnesses by the habeas court, which is the sole arbiter of witness credibility and expressly found that the testimony of the petitioner and A, alleging that the petitioner had been coerced into pleading guilty, was not credible, that was the only evidence offered to support the petitioner's claims that his plea had been coerced and that his trial counsel rendered ineffective assistance, and the credibility of trial testimony is not debatable among jurists of reason. Argued September 13—officially released November 5, 2019

Herman worked as a legal recruiter for 23 LTD, d/b/a Bradsby Group (Bradsby). When she was hired, Herman signed an employment agreement with a nonsolicitation provision and a noncompete provision. Bradsby terminated Herman's employment and she thereafter founded a company that did some legal recruiting and law firm succession planning. Bradsby sued Herman for breach of the noncompete and nonsolicitation provisions. A jury determined that Herman had not breached the noncompete provision, but returned a verdict in favor of Bradsby on the nonsolicitation claim and awarded nominal damages of one dollar. The district court set aside that verdict and entered judgment in favor of Herman because the nonsolicitation provision violates Colorado law and the court declined to narrow the provision to render it enforceable. The court denied Herman's request for attorney fees under the employment agreement's fee-shifting provision. On appeal, Bradsby argued that the district court erred in declining to blue pencil the nonsolicitation provision. Parties to an employment, noncompete, or nonsolicitation agreement cannot contractually obligate a court to blue pencil noncompete or nonsolicitation provisions to render unenforceable terms enforceable. But a trial court has broad discretion to blue pencil an otherwise offensive restrictive covenant. Here, the district court gave substantial reasons why it declined to exercise its discretion to blue pencil the agreement, including the general Colorado public policy against noncompete provisions, authority in other jurisdictions, and the significant overbreadth of the nonsolicitation provision. Thus, the district court did not err. Bradsby next argued that the jury's verdict that Herman did not form a competing company in violation of the noncompete provision is not supported by the evidence. The noncompete provision stated that, upon her termination, Herman would not become involved in a company that competed with Bradsby within a defined

For child support purposes, an obligor's income must be sufficiently documented through the use of tax returns, current wage statements, and other information. Self-employment income must be determined using the average of the most recent five years of self-employment activity if that information is available.