Court Rulings

Property law—Contracts—R.C. 2711.01(B)(1)—An action seeking a determination that an oil and gas lease has expired by its own terms is a controversy involving the title to or the possession of real estate and, under R.C. 2711.01(B)(1), is not subject to arbitration—Court of appeals' judgment reversed and cause remanded.

Preliminary injunction modification noncompete agreement doctor specialized abuse of discretion likelihood of success on the merits irreparable injury unjustifiable harm to third parties public interest reasonable legitimate business interest undue hardship injury to the public. The trial court did not abuse its discretion when it modified the noncompete agreement between appellant and appellee. Appellant did not have a substantial likelihood of success on the merits of its breach-of-contract claim against the appellee with the noncompete agreement as written, however it did have a substantial likelihood of success under the trial court's modified noncompete agreement. As modified by the court, the noncompete agreement protected appellant's legitimate business interests, did not impose and undue burden on the appellee, and did not injure the public. Further, the modified noncompete agreement would not cause the appellant to suffer irreparable injury. Finally, third parties would be harmed, and the public interest would not be served by enforcing the noncompete agreement as written by appellant. Accordingly, the trial court did not abuse its discretion when it modified the noncompete agreement between the parties.

Education—Community schools—Ohio State Board of Education's final determination that a community school must repay money in excess funding may not be appealed under R.C. Chapter 119—Court of appeals' judgment affirmed.

As claimant quit her former position of employment for reasons unrelated to her workplace injury she was ineligible for temporary total disability compensation after the date of her resignation. The relator's limited objection is sustained as magistrate's decision does not contain a clear and definitive determination as to the date at issue. Respondents' objections overruled relator's limited objection sustained writ granted.

The trial court correctly concluded that SERB did not abuse its discretion in finding the absence of probable cause for an unfair labor practice under R.C. 4117.11(A)(1) or (A)(5). Judgment affirmed.

The defendant H filed a complaint with the plaintiff Commission on Human Rights and Opportunities alleging discrimination in housing because of race against the defendant C, her neighbor in a condominium complex. C was defaulted in the underlying administrative proceeding. At the hearing in damages, the plaintiff commission requested $75,000 in com- pensatory damages. The human rights referee of the defendant Commis- sion on Human Rights and Opportunities awarded H, inter alia, $15,000 in compensatory damages for emotional distress. The plaintiff commission filed a request for the referee to reconsider her decision, which request was deemed denied after the referee failed to take further action. The plaintiff commission then appealed the referee's decision, claiming, pri- marily, that the damages awarded were insufficient. The trial court remanded the matter for further consideration of damages in light of the Supreme Court's decision in Patino v. Birken Mfg. Co. (304 Conn. 679). On remand, the referee issued a final decision that did not change the amount of the damages awarded. The administrative appeal was then argued before the trial court, which rendered judgment dismissing the appeal and affirming the referee's decision. On the plaintiff commis- sion's appeal to this court, held that the referee did not act unreasonably or arbitrarily in her decision and the trial court did not abuse its discre- tion in dismissing the plaintiff commission's appeal and affirming the referee's decision: neither the referee nor the trial court misinterpreted or misapplied Patino in the determination of emotional distress dam- ages, as Patino did not establish a presumptive or mandatory range of damages for emotional distress claims but merely addressed a general range that such claims typically merit, references to that range in other cases did not establish any binding principle pertaining to damage awards in emotional distress actions, the fact that the emotional distress damag

The substitute plaintiffs, D and A, sought a declaratory judgment to deter- mine the rights and obligations of the parties under a certain insurance policy that had been issued to the plaintiff L Co., a wheelchair accessible van seller and van modifying company, by the defendant C Co. In an underlying personal injury action, D, a paraplegic confined to a motor- ized wheelchair, sought damages for injuries he sustained in connection with a confrontation with K, an employee of L Co. During an argument D had with K about modifications L Co. made to D and A's van, the confrontation turned physical when K slapped a baseball cap off D's head. When K saw that A, D's wife, had recorded the incident on her cell phone, he grabbed the phone from her and threatened in crude terms to break it. As D moved his wheelchair toward K in order to retrieve the cell phone, K grabbed D's arm and the wheelchair and altered its path, which caused D to fall from his wheelchair and sustain serious injuries. D and A settled an underlying personal injury action against L Co. and K by means of a stipulation for judgment. L Co. and K commenced an action against C Co. seeking a legal declaration that, under their insurance policy, C Co. had a duty to defend and indemnify them for the claims alleged in the personal injury action. As part of the stipulated settlement of the personal injury action, L Co. assigned its rights under the policy to D and A, and D and A were substituted as party plaintiffs. The trial court granted a motion for summary judgment filed by C Co. as to D and A's complaint and its counterclaim, from which D and A appealed to this court. Held: 1. The trial court did not err in holding that the exclusion provisions under the insurance policy pertaining to an assault or battery applied to D's and A's claims and that there was no coverage under the policy because D's injuries were not caused by an accident that resulted from garage operations, and properly determined that C Co. had

Ineffective assistance of counsel speedy trial venue Evid.R. 803(6) business records hearsay trial strategy sufficiency of evidence manifest weight of evidence making a false alarm aggravated menacing telecommunications harassment Evid.R. 404(B) other acts evidence. - Defendant's convictions for making a false alarm, aggravated menacing, and telecommunications harassment were supported by sufficient evidence and not against the manifest weight of the evidence. Defense counsel was not ineffective for not objecting (1) on speedy trial grounds where the case was timely brought to trial (2) to subpoenaed business records where the records were authenticated and properly admitted under Evid.R. 803(6) and (3) to hearsay testimony where the decision not to object was a trial strategy. Venue was properly established. The trial court did not abuse its discretion in admitting other acts testimony because it was admitted for the purpose of establishing the defendant's identity the city's failure to give formal notice of its intent to use other acts evidence under Evid.R 404(B) was not reversible error where there was no bad faith and the testimony to which the defendant objected was disclosed in a police report prior to trial.

INSURANCE — DAMAGES: In an insurance-coverage dispute under a crime-protection policy, the trial court's award in favor of the plaintiff-insured was not against the manifest weight of the evidence where plaintiff-insured brought a claim to recover its loss within the contractual period and the plaintiff-insured's expert in forensic accounting opined (1) that plaintiff-insured's dishonest employee received $5.6 million in kickbacks from vendors (2) that the vendors transferred the cost of the kickbacks to plaintiff-insured through "purposeful inflation" of invoices and bids and (3) that this "purposeful inflation" of at least $5.6 million was a financial loss to the plaintiff-insured. The trial court did not err by granting summary judgment in favor of defendant-insurer on plaintiff-insured's claim of bad faith where defendant-insurer had a reasonable justification for denying coverage: plaintiff-insured had failed to submit the necessary proof required to establish a loss under the insurance policy. The trial court did not err by entering summary judgment in favor of plaintiff-insured on defendant-insurer's affirmative defense of failure to cooperate: plaintiff-insured had not materially prejudiced defendant-insurer's investigation by failing to reveal that it had secretly recorded dishonest-employee's telephone conversations where the recordings were difficult to understand and plaintiff-insured had taken no action against employee after reviewing the recordings.

Section 65-01-02(11)(a)(3), N.D.C.C., requires claimants to prove a compensable heart-related injury by showing with reasonable medical certainty their employment caused the injury and unusual stress was at least 50% of the cause of the injury. Objective medical evidence may not be established solely by deductive reasoning.

Industrial commission's determination to deny relator PTD compensation due to relator's capability of sustained remunerative employment is supported by a physician's opinion addressing relator's psychological conditions. Because "some evidence" supports the commission's decision, relief in mandamus is inappropriate on the facts of the case. Writ of mandamus denied.

The termination of a guardianship in one case does not create a factual presumption that a guardianship in a related case should be terminated. Under N.D.C.C. § 27-20.1-16(3)(c), a petitioner must show by clear and convincing evidence that the circumstances that led to the guardianship no longer exist. A juvenile court does not need to find exceptional circumstances to extend a guardianship. Under N.D.C.C. § 27-20.1-17(1), a juvenile court does not need to use the words "good cause" to make a finding rising to the level of good cause.

The magistrate did not err in concluding that there was some evidence to support the administrative designee's order that the installers and inspector of relator were employees and not independent contractors. We also find there are both factual and legal distinctions between this court's decision in Barcus v. Buehrer, 10th Dist. No. 14AP-942, 2015-Ohio-3122 and the instant case. Objections overruled. Writ denied.

Workers' compensation—Violation of specific safety requirement—Industrial commission did not abuse its discretion in granting additional award—Record contained evidence supporting commission's findings that specific safety requirement applied, that employer violated it, and that violation was proximate cause of injury—Court of appeals' judgment denying writ of mandamus affirmed.

Preliminary injunction permanent injunction breach of contract, franchise agreement misappropriation of trade secrets unfair competition Civ.R. 65(B).

Appeal dismissed for lack of jurisdiction. Because the trial court's ruling ordering the parties to submit an agreed protective order for its review provided adequate safeguards of appellants' alleged trade secrets, it was not a provisional remedy that qualifies as a final appealable order under R.C. 2505.02.

Summary judgment discrimination limitations contractual limitations shortened employment application enforceable reasonable employment-related claims arguments first time appeal. Affirmed the trial court's decision to grant summary judgment on employment-related claims that were untimely filed and barred by a six-month limitations period contained in appellant's employment application. The provision was found reasonable and enforceable under Ohio law. Some of the arguments were not addressed because a party who does not raise an issue in the trial court may not ordinarily raise that issue for the first time on appeal.

Workers' compensation—To maintain the privilege of self-insurance, an employer must pay all compensation as required by Ohio's workers' compensation laws—An employer's obligation to reimburse Bureau of Workers' Compensation for relief-fund benefits is separate and distinct from its obligation to pay injured workers their awarded compensation—Relief-fund benefits may not be used to "offset" an incorrect payment of permanent-total-disability compensation—Court of appeals' judgment affirmed.

A public school treasurer was not entitled to additional damages based on the school board's failure to send him further notices of nonrenewal after he was reemployed by operation of law pursuant to R.C. 3313.22(A). Under the statute, the treasurer was entitled to only a one-year term of reemployment, and the trial court did not err in limiting damages to one year. The trial court did err in failing to award the treasurer attorney fees based on the school board's violation of R.C. 121.22(F). Under R.C. 121.22(I)(2)(a), a well-informed school board would reasonably have believed, based on ordinary application of the law, that it was violating or threatening to violate R.C. 121.22. Furthermore, a well-informed school board reasonably would have believed that its conduct would not serve public policy. Finally, the trial court also erred in adding damages that were not statutorily authorized under R.C. 3313.22(A), which allows recovery only of the treasurer's salary and increments. Judgment affirmed in part, reversed in part, and remanded for further proceedings. (Hall, J., concurring in part and dissenting in part.)

Pursuant to statute (§ 31-60 [b]), the Commissioner of Labor shall adopt regulations that carry out the purposes of the minimum wage laws, and such regulations shall entitle employers, as part of the minimum fair wage, to a tip credit by including gratuities in an amount equal to a certain percentage of the minimum fair wage per hour for persons, other than bartenders, who are employed in the hotel and restaurant industry and who regularly and customarily receive gratuities. Pursuant further to a Department of Labor regulation (§ 31-62-E4), ''[i]f an employee performs both service and non-service duties, and the time spent on each is definitely segregated and so recorded, the allowance for gratuities as permitted as part of the minimum fair wage may be applied to the hours worked in the service category,'' but, ''[i]f an employee performs both service and non-service duties and the time spent on each cannot be definitely segregated and so recorded, or is not definitely segregated and so recorded, no allowances for gratuities may be applied as part of the minimum fair wage.'' The defendants, K Co. and its single member, C, appealed from the trial court's order certifying for class action status an action brought by the plaintiff, who was employed at one of the six restaurants in Connecticut operated by the defendants under the name Chip's Family Restaurants. In addition to waiting tables, servers at the restaurants were required to perform ''side work,'' such as cleaning tables and appliances, restocking, slicing lemons, and preparing food toppings. The plaintiff alleged in her complaint that the defendants violated Connecticut wage laws when they failed to pay their servers, during a certain time period, the minimum hourly wage mandated by § 31-60 (b) by unlawfully deducting a tip credit from the servers' wages for the time they spent on side work, which the plaintiff claimed was nonservice in nature under § 31-62-E4 of the regulations. The trial court granted the p

Foreclosure motion for summary judgment in blank indorsement allonge multiple versions of the note supplemental affidavit attached to reply brief loan modification agreement possession of the original note enforceability of the note Evid.R. 901 authentication Evid.R. 1003 personal knowledge payment history conditions precedent notice of default Fair Debt Collection Practices Act and invasion of privacy. The trial court's decision to grant plaintiff-appellee's motion for summary judgment was appropriate where the record demonstrated no genuine issues of material fact existed for trial. A supplemental affidavit attached to the plaintiff-appellee's reply brief that clarified previously raised issues was correctly considered by the trial court. The execution of a loan modification agreement did not transfer the note holder's interest to the loan servicer. Enforceability of the note was demonstrated by the plaintiff-appellee's possession of the instrument, with an in blank indorsement, at the time the foreclosure complaint was filed. The existence of an undated allonge and an in blank indorsement, both assigning the note to the plaintiff-appellee, did not refute the plaintiff-appellee's status as holder of the note or create a genuine issue of material fact. The affidavits provided by the loan servicer's employee authenticated the documents affixed to the foreclosure complaint. The plaintiff-appellee's notice of default letter clearly explained the defendants-appellants' rights of reinstatement and referenced the rights of reinstatement detailed in their mortgage so as to satisfy the conditions precedent mandated before filing the foreclosure action. The defendants-appellants' counterclaims that presented a violation of the Fair Debt Collection Practices Act and an invasion of privacy were correctly dismissed pursuant to summary judgment.

The plaintiffs sought, by way of summary process, to regain possession of certain premises occupied by the defendant. The plaintiffs served on the defendant a pretermination notice, alleging that the defendant had violated her lease agreement, the house rules of the apartment building where the defendant resided, and several statutory provisions (§ 47a- 11 (a) through (g)). Subsequently, a kitchen fire started in the defendant's apartment after she began cooking on her stove and then fell asleep. Thereafter, the plaintiffs served on the defendant a notice to quit posses- sion of the premises. The trial court rendered a judgment of immediate possession in favor of the plaintiffs. Thereafter, the court denied the defendant's motions to open the judgment and to dismiss for lack of subject matter jurisdiction, and the defendant appealed to this court, claiming that the plaintiffs served an insufficient notice to quit. Held that the trial court properly denied the defendant's motions to open and to dismiss and the court had subject matter jurisdiction to render judgment on the ground of nuisance: notwithstanding the defendant's claim that the notice to quit did not adhere to statutory requirements (§ 47a-23) in the absence of a new pretermination notice regarding the kitchen fire, a landlord is required to provide only the statutorily required notices, the notice to quit was required to state only that the pretermina- tion notice had been served and that the lease had terminated on the ground of nuisance, and the notice to quit included language that the defendant violated § 47a-11, which states that the defendant shall not conduct herself in a manner that constitutes a nuisance, and, thus, the pretermination notice provided the defendant with necessary informa- tion, and the notice to quit satisfied jurisdictional requirements. Argued January 22—officially released September 1, 2020

The plaintiff sought to recover damages from the defendant dentist, D, and his business entity M Co., for medical malpractice in connection with a dental procedure performed on the plaintiff by D. The plaintiff alleged in his complaint that D held himself out as a specialist in endodontics and attached to his complaint a good faith certificate from what he alleged was a similar health care provider, S, an endodontist. The defen- dants moved to dismiss on the ground that the opinion letter did not comply with the requirements of the statute (§ 52-190a) because S was not a similar health care provider as defined by statute (§ 52-184c). The defendants attached an affidavit of D, in which he attested that he is a general dentist. The plaintiff objected to the motion to dismiss and attached a supplemental affidavit of S, which further elaborated on S's qualifications as a similar health care provider. The trial court granted the defendants' motion to dismiss on the ground that the plaintiff had failed to provide an opinion letter from a similar health care provider as required by §§ 52-190a and 52-184c. Specifically, because the plaintiff had attached an opinion letter authored by S, a specialist in endodontics, and D was a general dentist, the trial court determined that S's opinion letter was not that of a similar health care provider because D was not a specialist as defined by § 52-184c (c) and, thus, the opinion letter was required to be authored by a general dentist. Moreover, the court concluded that there was no information to establish that S had been involved in the teaching or practice of general dentistry in the five year period before the procedure so as to be a similar health care provider as defined by § 52-184c (b). The court rendered judgment in favor of the defendants and the plaintiff appealed to this court. Held: 1. The defendants could not prevail on their unpreserved claim that the trial court should not have considered the supplemental affidavit su

The plaintiff sought to recover damages for the alleged negligence of the defendant J Co., an independent contractor hired by a possessor of land to render snow and ice removal/remediation services for premises on which the plaintiff slipped on an accumulation of ice and fell to the ground, sustaining injuries. The trial court granted the motion for sum- mary judgment filed by J Co., interpreting the counts against it as sound- ing in premises liability, and finding that because the plaintiff did not allege that J Co. possessed and controlled the premises, J Co. did not owe a duty to the plaintiff. On the plaintiff's appeal to this court, held that the trial court improperly rendered summary judgment as to those counts of the complaint against J Co. by mischaracterizing the plaintiff's claims as sounding in premises liability; the counts against J Co. alleged ordinary negligence in that the plaintiff did not allege that J Co. owed her a duty because it owned or controlled the premises, but that the duty J Co. owed to her arose from the snow services agreement it had with the third-party land possessor, and, pursuant to § 324A of the Restatement (Second) of Torts, because the plaintiff alleged that J Co. undertook to render snow and ice removal/remediation services on the premises, which activity J Co. should have recognized as necessary for the protection of persons such as the plaintiff, J Co. may have been liable to the plaintiff for the injuries she allegedly sustained that resulted from any failure by J Co. to exercise reasonable care in removing/ remediating snow and/or ice from the premises. Argued March 10—officially released July 21, 2020

The trial court did not err by adopting the State Medical Board's ("board") order to suspend appellant's license to practice medicine for an indefinite period, not less than one year. The board's consideration of appellant's disclosures to third-parties that were not expressly stated in the notice, including potentially uncharged misconduct, were aggravating factors pursuant to the board's rules and did not constitute a due process violation. Statements by a member of the board when reviewing appellant's case amounted to commentary and not new evidence in violation of appellant's due process rights. The trial court did not abuse its discretion finding the board's determination that appellant committed a sexual misconduct violation was based on reliable, probative, and substantial evidence. Judgment affirmed.

Civ.R. 26 discovery compel privileged provisional remedy final appealable order R.C. 2505.02(B)(4) European Union General Data Protection Regulation. - Trial court's order granting motion to compel of potentially privileged or confidential documents was a provisional remedy under R.C. 2505.02 and thus, subject to immediate appeal. Assuming the European Union's General Data Production Regulation applies to the personnel files of European citizens, the factors to be considered weigh in favor of production. However, the trial court should have conducted an in camera inspection of the documents requested and redacted those documents deemed irrelevant or confidential.

Trial court did not err in holding appellants' claims for negligence, tortious interference with business relationships, and intentional infliction of emotional distress were disguised defamation claims. Having filed the complaint past the one-year statute of limitations for defamation, appellants were not prejudiced by the trial court's determination that the attorney general's office had absolute privilege to publish an allegedly defamatory press release. Judgment affirmed.

Court of Claims did not err when it granted summary judgment in favor the Ohio Department of Rehabilitation & Correction ("DRC") as to inmate's defamation claim. Though the oral defamatory statements allegedly made by a DRC employee directly accused appellant of being a troublemaker, know-it-all, and poor dog handler, because those statements did not import an indictable criminal offense involving moral turpitude or infamous punishment, impute some loathsome or contagious disease which would exclude appellant from society, or tend to injure appellant in his trade or occupation, appellant's failure to plead and produce evidence of special damages was fatal to his slander claim. Similarly, because the written statement made by a DRC employee disparaged appellant's reputation as a model inmate and accused him of being a poor dog handler only by inference, appellant's failure to either plead or produce evidence of special damages entitled DRC to judgment, as a matter of law. Judgment affirmed.

Construing the evidence most favorably to the non-moving plaintiff and conducting a de novo review, genuine issues of fact as to each of the disputed elements of retaliation claim exist, making it not suitable for resolution on summary judgment according to evidence in record.

Objection of respondent sustained and writ of mandamus denied. Relator has not shown that she has a clear legal right to the relief she requests, nor that respondent is under a clear legal duty to perform the act requested. Therefore, relator is not entitled to a writ of mandamus ordering respondent, Public Employees Retirement Board, to retroactively modify relator's retirement plan with the Ohio Public Employees Retirement System from the Combined Plan to the Traditional Pension Plan, effective to October 8, 1987, her original date of hire by the Franklin County Public Defender.

The right to appeal is jurisdictional and, if we conclude we do not have jurisdiction, we will dismiss an appeal on our own motion. A judgment granting a divorce while reserving other issues for later determination is not final judgment for the purpose of an appeal, unless the district court has certified the judgment as final pursuant to N.D.R.Civ.P. 54(b).