It sometimes amazes me how the law turns on the slightest things. One of the attorneys in my office has a medical malpractice case, and had sent out a 180 day letter under ORC 2305.113 extending the statute of limitations. Actually, being a very cautious sort, he had sent out three of them: a letter to the doctor’s office, a letter to the doctor’s home, and then had hand-delivered yet another notice to the doctor’s office, all within about a month’s period of time. The question now is, does the time for filing run from the first letter or the last letter?  (keep reading…)

A reminder by the court in Olynyk v. Andrish that you can voluntarily dismiss a case more than once, if you’re careful.  Rule 41(A) actually provides three means of dismissing your case:  by simple notice by the plaintiff, under 41(A)(1)(a), by stipulation of the parties, under 41(A)(1)(b), or by order of court, under 41(A)(2).  Without getting into the procedural history in Olynyk, which is as confusing as the DHARMA Initiative’s orientation film on Lost, the plaintiff had requested the court to dismiss the case once, and then later filed a notice dismissal.  The trial court entered an order treating this as a dismissal with prejudice.  Judge Gallagher’s opinion in Olynyk contains a thorough review of Ohio law showing that the “double dismissal” rule applies only to notice dismissals under 41(A)(1)(a).  Judge McMonagle, in her concurring opinion, also notes correctly that the trial court had no authority to enter its order after the dismissal; once the notice of dismissal is filed, the trial court loses jurisdiction.    

When the prosecutor reads me the police report at the first pretrial, I’m always pleasantly surprised when the cops’ version bears at least a vague resemblance to what my client has told me. So I’m pleasantly surprised: according to the report, the police had seen him standing near a bus stop with an open container of beer, had approached him to give him a citation, patted him down, and felt a hard cylindrical object in his pocket, which of course turned out to be a crack pipe. Oh, sure, the police didn’t corroborate his claim that the bottle had been merely sitting next to him on the bench, rather than in his hand, and there was no mention of the two women who he said were there with him, one of whom had been kind enough to furnish the jacket in which the crack pipe was found. But those niggling details wouldn’t be a problem. I told the prosecutor that I’d be filing a motion to suppress. He laughed at me. “The guy had an open container!” Another defense attorney at the table pointed out that the police only give a citation for an open container, but shrugged in agreement with the prosecutor’s claim that that was good enough to justify a stop and frisk.

So a few weeks later, we had the hearing, and the evidence gets tossed quicker than a Taco Bell burrito after eight beers. What happened?  (keep reading…)

No sympathy for the plaintiffs, an 80-plus-year-old couple, who tripped and fell while trying to negotiate a snowpile in front of a Denny’s restaurant. As we all know, one of the hazards of living in Ohio – besides enduring botched elections and botched executions – is being left without anyone to sue for a fall on ice or snow. Of course, that only applies to a “natural accumulation of ice and snow,” leaving a potential remedy for those whose falls are occasioned by unnatural accumulations.  That was the question in Dunbar v. Denny’s Rest.:  the parking lot had been plowed, and the plowing company piled up the snow up in front of the handicapped entrance. The elderly couple argued that the restaurant and the snow-plowing company “were negligent in creating a dangerous condition when [they] altered the natural accumulation of ice and snow by plowing the parking lot so as to create an unnatural mound of snow in front of the restaurant handicap ramp entrance.”

The court wasn’t buying. Noting prior decisions which had held that “when snow and ice are piled up by plowing or shoveling and then thaw and refreeze, the resulting ice is a natural accumulation,” the court found that the ridge of ice and snow at the entrance to the handicapped ramp was an open and obvious hazard. If I were somewhat more enterprising, I might look up how the Americans with Disabilities Act might affect this situation.

The court deferred for another day resolution of whether the food at Denny’s constitutes an open and obvious hazard.

Word of caution to all those small business owners out there (a lot of them lawyers) who are writing off 80% or more of the cost of the car as a business expense: it might take you out of the coverage of the Consumer Sales Practices Act. That’s what happened to the plaintiff in Lecso v. Toyota of Bedford, Inc. She’d sued Toyota for various problems, but the court held that the CSPA didn’t apply, given that “Lecso testified that she primarily used the vehicle (95% of the time) for business purposes.”  The CSPA applies only to “consumer transactions,” which are confined to “the sale of an item of goods or services to an individual ‘for purposes that are primarily personal, family, or household.’”

It’s Sunday morning, so it’s a good time to be a little self-indulgent.  (As Dorothy Parker once said, “Well, that’s enough about you.  Let’s talk about me.”)  Law blogs are hardly new; in fact, there’s a term for them:  “blawgs.”  They’re not new in Ohio, either.  The law school at the University of Akron has a site which discusses the subject, and gives the rundown on a number of blawgs.  Some cover Ohio law generally, some cover specific areas, some just tell war stories.  There’s one by a young lawyer “with a strong interest in LGBT issues.”  My guess is that if you don’t know what that stands for, you probably wouldn’t be interested. 

As I explain in the “About the Site” section, this is going to be a good bit narrower.  It’s also going to be a work in progress, especially aesthetically.  There’s a lot I want to do with the site, and it’ll probably get a little dressier in a couple of months.  One of the things I’d like to have a button that you can click to send me an email telling me whether you like this idea or pointing out when I goof up.  I’ll have that up soon.

Eventually, I’d like to use this site to set up sort of a forum for local lawyers to exchange cases, tips, stories, strategies, whatever.  Pooled knowledge is a powerful thing.  That’s well down the road, though.  For now, what you’ve got is me.

Well, that’s enough self-indulgence.  Powered by my second cup of Dunkin’ Donuts coffee (French Vanilla), on to the law.

If you’ve filed a complaint that doesn’t pass the giggle test, and think that voluntarily dismissing it can avoid sanctions, think again. In Brown v. Hageman and Gitlin v. Plain Dealer Publishing Co., the court says that the trial judge retains jurisdiction to grant sanctions for frivolous conduct even after a Rule 41(A) notice of voluntary dismissal.

And an interesting case on sanctions is Orbit Elecs., Inc. v. Helm Instrument Co.  The court holds that a trial judge’s decision on sanctions can be reviewed only for abuse of discretion, but then divides the kind of conduct that can warrant consideration of sanctions into “factual” and “legal” determinations. A factual one is where the action is imposed when “a party engages in conduct to harass or maliciously injure another party,” while a legal one is “whether the claim is warranted under existing law.” Interestingly, the court determines that the legal determination can be reviewed de novo by the appellate court, because it’s a question of law, while at the same time reaffirming that the decision whether to grant sanctions won’t be reversed absent an abuse of discretion.  (keep reading…)

The trial judge erred in not awarding costs for law clerks as part of attorney fees recoverable for a consumer sales practice act violation, the court holds in Jarmon v. Friendship Auto Sales.

The lower court had awarded damages of $2,500 to the plaintiff, trebled that to $7,500, but then awarded only about $3,500 of the nearly $13,000 in attorney fees that were requested, discounting the charges for law clerk time in their entirety. The appellate court noted that use of law clerks should be encouraged, because it reduces the cost of litigation. Given that the law clerk expenses were more than the trebled damage award, I’m not sure that contention is justified.

The fallout from State v. Foster, the Supreme Court’s recent decision nullifying Ohio’s sentencing scheme, continues. In State v. Congress, the 8th District vacates a sentence in which the defendant was given more than the minimum sentence. Since the defendant had never served prison time, “the trial court imposed more than the minimum sentence after making findings pursuant to the provisions of R.C. 2929.14(B)…” But since the Supreme Court declared those statutes unconstitutional and “excised [them] from the statutory scheme, . . . defendants that were sentenced under unconstitutional and now void statutory provisions must be re-sentenced.” And in State v. Woods, the court vacates a maximum, consecutive sentence and remands it back for resentencing.  (keep reading…)