FIRST DISTRICT
COURT OF APPEALS
THESE SUMMARIES ARE NEITHER APPROVED IN ADVANCE NOR ENDORSED BY THE COURT. THEY ARE NOT HEADNOTES OR SYLLABI. INTERESTED PARTIES SHOULD OBTAIN COPIES OF THE ACTUAL DECISIONS FROM THE CLERK OF THE COURT OF APPEALS.
DATE: Friday, October 25, 2024
CAPTION: WECKEL V. COLE + RUSSELL ARCHITECTS, INC.
APPEAL NOS.: C-210425, C-230535, C-230543
TRIAL NO.: A-1805234
KEY WORDS: BREACH OF CONTRACT — RES JUDICATA — ANTICIPATORY REPUDIATION — JURISDICTION — LIMITED REMAND —PREJUDGMENT INTEREST — R.C. 1343.03(A) — ABUSE OF DISCRETION — ATTORNEY FEES — BAD FAITH
SUMMARY: The trial court did not err in granting plaintiff’s motion for summary judgment on his breach-of-contract and declaratory-judgment actions and denying defendant’s motion for summary judgment where defendant failed to establish either of its affirmative defenses of res judicata or anticipatory repudiation.
The trial court lacked jurisdiction to consider defendant’s and plaintiff’s respective Civ.R. 60(B) motions on limited remand from the court of appeals, where the scope of the remand was limited to plaintiff’s motion for attorney fees and prejudgment interest.
The trial court did not err in awarding plaintiff prejudgment interest on his breach-of-contract claim from the date that it determined plaintiff’s claim became ripe where, although the trial court’s choice of accrual date was years later than it may have been, choosing the later date was not an abuse of discretion because plaintiff asked for that date; however, the trial court abused its discretion in setting the prejudgment interest rate at the applicable rate on the date that plaintiff’s first lawsuit ended because the trial court did not base the rate determination on the plain language of the parties’ contract.
The trial court did not abuse its discretion in denying plaintiff’s motion for attorney fees where the trial court’s finding that defendant did not litigate in bad faith was supported by the record.
JUDGMENT: AFFIRMED IN PART, REVERSED IN PART, AND CAUSE REMANDED; APPEALS DISMISSED IN PART IN C-230535 AND C-230543
JUDGES: OPINION by BOCK, P.J.; ZAYAS and CROUSE, JJ., CONCUR.
CAPTION: STATE V. COLLINS
APPEAL NO.: C-240011
TRIAL NO.: B-2004916
KEY WORDS: THEFT – R.C. 2913.02 – POWER OF ATTORNEY – UNIFORM POWER OF ATTORNEY ACT – VICTIMS RIGHTS – MARSY’S LAW – RESTITUTION – R.C. 2929.18 – INEFFECTIVE ASSISTANCE OF COUNSEL – SUFFICIENCY OF THE EVIDENCE – MANIFEST WEIGHT OF THE EVIDENCE
SUMMARY: Where the State introduced evidence that defendant had spent her principal’s funds under his power of attorney but had left his nursing-home bills unpaid, and where the State offered no evidence that particular expenditures went beyond the scope authorized in the power of attorney, the trial court lacked sufficient evidence to convict defendant for the theft of the full amount of the unpaid nursing- home bills under R.C. 2913.02(A)(2).
Where the State introduced evidence that defendant, under her principal’s power of attorney, withdrew her principal’s funds to gamble, while nevertheless failing to pay her principal’s nursing-home bills, the evidence was sufficient to convict defendant for the theft of the funds spent gambling under R.C. 2913.02(A)(2), and her conviction was not against the manifest weight of the evidence.
Where a victim of theft owes money to a nursing home, which he can no longer pay because of the theft, the nursing home is not a “victim” of that theft entitled to restitution under R.C. 2929.18 and Marsy’s Law, because the nursing home was only indirectly injured by the theft.
Where a claim for ineffective assistance of trial counsel is predicated on counsel’s failure to introduce certain evidence at trial, that claim will nearly always fail on direct appeal, where the reviewing court may not consider evidence outside the record, and is better suited for a postconviction proceeding.
Where a hearsay statement explained the motive for otherwise undisputed expenditures, but where the expenditures themselves were sufficient to prove theft, trial counsel’s failure to object to the hearsay statement did not prejudice defendant.
JUDGMENT: Conviction Affirmed as Modified, Sentence Vacated, and Cause Remanded
JUDGES: OPINION by crouse, J.; ZAYAS, P.J., and BERGERON, J., CONCUR.