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Case Update

The US Supreme Court has wrapped up its 2006 term, and I'll have some posts this week about that.  The Ohio Supreme Court had one decision of significance, holding in Olynyk v. Scoles that the "double dismissal" rule, which prevents a plaintiff from refiling a complaint that has been previously voluntarily dismissed more than once, only applies where both previous dismissals have been under 41(A)(1)(a); if the previous dismissal was by court order or stipulation of the parties, a "notice" dismissal won't bar refiling. 

I discussed this case a few months back after oral argument, and also last year when the 8th District ruled on it.  As I mentioned then, one thing to keep in mind is that the savings statute, RC 2305.19, also has a "one-time" rule:  you can't use it more than once.  So even if you don't run afoul of the double-dismissal rule of 41(A), if your second dismissal would require you to rely on the savings clause a second time, you're out of luck.

In the court of appeals, the 1st District holds that a defendant's fear that he will be given more time at sentencing because he got indicted for several counts of drug trafficking after his plea doesn't give him a basis for withdrawing the plea.  The 10th District upholds a trial judge's dismissal of a domestic violence case; the court had set the matter for trial at 10:00 AM, and dismissed it when the state's witness failed to appear by 11:50 AM.  The 3rd District reverses a community-constrol sanction sentence for 4th-degree felony cocaine possession because the judge didn't make the findings required by RC 2929.13(D) to overcome the presumption of imprisonment

On the civil side, the 10th District holds the statute of limitations in a medical malpractice claim begins to run when the potential tortfeasors are identified, even if it's not determined until later that those tortfeasors committed malpractice.  The 8th District reverses a trial court's grant of arbitration in a consumer action against an auto dealer, holding that a claim that the agreement to arbitrate is unconscionable is a challenge to the existence or validity of the agreement, and therefore requires a hearing under RC 2711.03.  The 5th District affirms summary judgment for a hospital, holding that it had no duty to make sure invitees had a safe means of ingress and egress from the parking lot across a public thoroughfare. 

The next time you hear somebody criticizing judges for being too wordy in their opinions, you can point them to Judge Painter's dissent last week in the 1st District's decision in State v. PayneThe defendant had shot someone, and the majority upheld his conviction of two counts of felonious assault, holding that the two counts -- one for using a deadly weapon and the other for causing serious physical harm -- weren't allied offenses.  Judge Painter's dissent reads, in toto,

One gun, one shot, one felonious assault.

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