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August 11, 2006

We haven't done a weekly roundup for a while, and there's some new stuff out there.

Good discussion in this 6th District case about factors to be considered in deciding whether to allow a defendant to withdraw a plea.... 8th district says that in a remand solely for resentencing, trial court has no authority to entertain motion to vacate plea... 5th District holds that restitution has to be determined by the trial court at a hearing, not left for later determination... 9th District holds that officer violated defendant's Miranda rights prior to searching car based on odor of marijuana, but evidence comes in anyway under "inevitable discovery" rule...

Filing the transcript of a magistrate's hearing in the court of appeals isn't enough, the 5th District finds; it has to be filed in the trial court with the objections to the magistrate's decision... Burger King employee submits to sexual importuning by assistant manager (no "Home of the Whopper" jokes, please), judge grants summary judgment because he doesn't buy her story, 9th District reverses, says it's not his job to weigh credibility on motion... If you've got a slip and fall in a grocery store, this 10th District case affirming summary judgment on a slip on grapes is a good place to start...

I got a comment about Wednesday's post on voluntary dismissals, pointing out that under Rule 41(D) the court can assess costs against a dismissing plaintiff who refiles, staying the refiled action until the costs are paid.  (The court where the action was dismissed can't assess the costs, as this case indicates.)  Those costs do not include attorney fees, however, but only those costs allowed by statute.  Under the Federal rule, the court can assess attorney fees as a condition of granting a dismissal.

And to close things off, somedays, it's just not your day.  For the plaintiff in Knipschield v. Cleveland Inst. of Art, a Cuyahoga County case from 1994, that day was October 13, 1989, the events of which are recounted in a case from last week

In the Knipschield case, the defendant ran over the plaintiff, as he was backing out of a parking space, while she was bent over tying her shoe.  After the defendant felt his truck raise up and back down, he stopped and noticed a bystander waiving his arms. Plaintiff thought the bystander was directing him to pull forward, which he did, thereby running over the plaintiff a second time... On appeal, the Eighth District Court of Appeals found a material issue of fact existed with respect to whether the defendant exercised reasonable care in driving over plaintiff a second time.

Apparently, the court concluded that defendant did exercise reasonable care in driving over plaintiff the first time.

Have a good weekend, and see you on Monday.

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