Although there was nothing of significance in the Ohio Supreme Court this week, there were some interesting decisions from the US Supreme Court and 6th Circuit Court of Appeals on criminal questions. I'll discuss them tomorrow. Meantime, in the courts of appeals...
The 1st District concludes that minor-misdemeanor disorderly conduct is a lesser-included offense of assault, but the 4th-degree misdemeanor disorderly conduct is not, because it has the additional element of persisting in the conduct. There are a couple of districts -- the 10th and 2nd -- which hold that either degree of disorderly conduct is not a lesser-included of assault. The 8th District would probably agree with the 1st on this; a couple of years back, they held that the minor misdemeanor was a lesser-included of domestic violence, but the 4th degree misdemeanor was not, for the same reason.... The 1st District also did something you don't see very often: it reversed a trial court's denial of a motion to withdraw a guilty plea, finding that the trial court concentrated too much on the fact that the plea had been knowingly made, and not enough on the reasons for allowing withdrawal.
The 6th District affirmed the trial court's grant of a motion to suppress, holding that a homeowner's consent to search his house didn't extend to a backpack left there by another person.... The 8th District holds that a kidnapping conviction should have merged with an aggravated robbery conviction; the case has a good discussion of the "separate animus" requirement for allied offenses.
Some civil stuff: the 8th District continues the line of cases holding that a union employee does not have a right to claim wrongful discharge in violation of public policy, because his remedies for discharge are specified in the union contract.... And the 8th also gives a pointed -- and painful -- reminder that voluntary dismissals are self-executing. Summary judgment on been granted against their client on one of his claims, and he filed a voluntary dismissal of the other claims on June 29, 2006, so he could appeal. The court journalized the voluntary dismissal on July 10, and he appealed on August 9. Too bad; the dismissal becomes effective upon filing, not acceptance by the court, and the appeal wound up being dismissed for lack of jurisdiction.... The 12th District affirmed a trial court's grant of a civil protection order for a mother and child against the father, despite an Illinois order giving the father visitation rights, because the child had never lived in Illinois and thus that state's order wasn't entitled to full faith and credit.
Last, one more cautionary note, again out of the 8th District: don't assume that a late filing of an answer will be automatically accepted. That's what the lawyer figured in a case with the ungodly name of Ear v. Phnom Penh, and he got hammered for it. Civil Rule 6(B)(2) requires a showing of "excusable neglect" for a late filing. While this is less stringent than the showing under 60(B)(1), you still have to demonstrate something. The first time the lawyer filed it, he didn't specify anything, and when the judge called him on it, he put something together which wasn't quite true or helpful to his situation: he claimed that he'd been come on the case only recently, when in fact he'd been retained two months earlier, and asserted that he couldn't check service because the Internet in his office was down. Boo hoo. The judge threw out his pleading and gave the plaintiff a default judgment, and the appellate court affirmed.