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Case Update

Over a year ago, in one of my first posts on this blog, I discussed the 8th District decision in Zappitelli v. Miller, in which the a trial court had instructed a jury that they couldn't award attorneys fees unless they also awarded punitive damages.  The 8th District reversed, holding that attorney fees were a proper measure of compensatory damages in fraud cases, and could be awarded even if punitive damages weren't.  I mentioned at the time that that conclusion was "questionable," in light of the case law, and last Wednesday, the Ohio Supreme Court, obviously heavily influenced by what I'd written back then, reversed the 8th District in a 7-0 decision:  if the jury doesn't give you punitive damages, they can't give you attorney fees, either.  Sometimes I'm right, and when I want to remember the times that I'm wrong, all I have to do is look at my brokerage statement...

The other big decision out of the Supreme Court was the one on post-release controls, which I talked about on Thursday, so let's take a spin around the courts of appeals and see if anything down and dirty shows up.

If you're contemplating an abuse of process case, the legal hurdles of that are amply demonstrated by the 6th District's decision in Sullivan v. Tuschman, holding that even the defendant's suit "is motivated by ill-will or bad faith, or is entirely frivolous, it is not legally sufficient to support a claim of abuse of legal process."  I did a post on this subject about a year ago, which goes into more detail; you can find it here.  Interesting decision from the 8th District on when a buyer is entitled to specific performance on a breached contract for the sale of a house, but be sure to read the dissent. 

In the criminal area, the 6th District reverses a judge's finding of criminal contempt against a lawyer for appearing an hour-and-a-half late for trial, holds that it was indirect contempt, and he was thus entitled to a hearing.  The 12th District reverses the imposition of a fine because the trial court failed to conduct any inquiry into defendant's ability to pay it.  2nd District reverses a sentence because the trial court failed to ask defendant if he had anything to say before imposing sentence.  These failure to give the defendant the right to allocution reversals happen about once a month; in fact, the same district reversed another case on the same grounds just last week.  I'll bet a lot of the defendants come up with something to say that really changes the judges' minds.

And, in the Clothes Make the Man Department:  In rejecting the defendant's contention that the trial court failed to inquire as to whether he knowingly waived his right to appear at trial in civilian clothes, the 6th District focused on the court's colloquy on that matter, which began

THE COURT: "The record should reflect that Mr. Collins is in a Lucas County Corrections Center jumpsuit. Mr. Collins, were you given an opportunity to put on civilian clothes?"

APPELLANT: "Your Honor, ain't no clothes going to free me. The facts will free me, so I'm not worried about no clothes."

Don't know what the clothes might have done, but the facts didn't help:  the defendant was charged with two counts of rape, one of aggravated burglary, and one of kidnapping, and the jury convicted him of all four.

And finally, sometimes the syllabus doesn't adequately summarize a case, and sometimes it does, like this one from the 1st District:

In an action for medical malpractice based on injuries sustained when the patient's head caught on fire during electroconvulsive therapy, the trial court erred in granting summary judgment to the doctor responsible for administering the therapy...

Hard to quibble with the opening line from the always-reliable Judge Painter's opinion:  "Medical treatment should not involve setting a patient's head on fire."

By the way, today's my birthday.  I sent a memo to the other attorneys and staff in the office, telling them that I don't want anybody to spend more than $50 for a present for me.  I don't anticipate any problems with compliance.


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