Case Update
A reminder to be a bit careful about loss of consortium claims in this week's case of Disciplinary Counsel v. Itta. Itta had taken over a PI case from another lawyer in the firm, and filed suit, including a loss of consortium claim because the notes indicated the client was married. Somebody should have talked to the wife, or even the client; turns out that they were separated, and would subsequently divorce. The client balked at including the wife in the settlement of the PI case, so Itta dismissed her claim with prejudice. She found out about it, and he got a public reprimand for his troubles.
There were a couple of notable other cases out of the Ohio Supreme Court, one involving a search and seizure, the other charges on lesser included offenses. I'll discuss both of them in more detail tomorrow. The US Supreme Court is on spring break -- imagine what those party animals are doing down in Cancun -- but they did have a conference on Friday to consider granting cert in a number of cases, and depending on what they do, I'll have more on that, too.
On to the courts of appeals...
Civil. 6th District says that mistaken second voluntary dismissal -- which acts as adjudication on the merits -- does not afford a basis for a motion to vacate, especially if the same attorney filed the first one... 3rd District holds that plaintiff need not sue employee in tort claim against employer under respondeat superior theory... 3rd District reverses grant of permanent custody to Child Services Board, says mother's use of belt for discipline didn't constitute abuse, in absence of medical testimony that discipline was excessive... 9th District reverses summary judgment in BB gun case, good discussion of primary assumption of risk in recreational activities, especially as it pertains to children... Plaintiff settles case with one defendant, lawyer inadvertently files dismissal with prejudice against all defendants; 1st District agrees that this doesn't constitute "excusable" neglect warranting vacating the dismissals...
Criminal. 8th District reverses conviction for murder, says court should have charged on lesser included of reckless homicide... 3rd District says probation revocation hearings are not "criminal proceedings, only "substantial proof" is required for revocation, judge's decision reviewable for abuse of discretion... 9th District reverses murder conviction, finds prosecutorial misconduct in giving co-defendant plea deal in which lower prison term was contingent on defendant's conviction... 8th District says that judge's decision to bifurcate murder/weapons disability trial so that he'd decide latter case required compliance with requirements for jury waiver: in writing, signed by defendant, filed, made part of record, and made in open court... Ya think? 12th District says officer's observation during traffic stop of cup of beer on console of car gave "sufficient reasonable suspicion of criminal activity to justify further inquiry"... Excellent case from 9th District on protective sweeps, court reverses denial of motion to suppress in case, says can't be justified as standard police procedure...
Hey, I believe him. In State v. Webster, the 1st District affirmed a 120-day sentence for contempt of court for a defendant who'd been convicted of murder, robbery and kidnapping, because he engaged in an "expletive-laden tirade" immediately before being sentenced to 80 years in prison. Part of the tirade included the defendant's assertion that he "didn't give a fuck" about being sentenced to the additional 120 days.
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