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Case Update

Just a month ago, I highlighted the Supreme Court's review of Fletcher v. Univ. Hospitals, in which the 8th District had held that a plaintiff's failure to attach an affidavit of merit to her medical malpractice complaint should be addressed by a motion for more definite statement, rather than a motion to dismiss.  I'd noted that "the 8th District hasn't had a good track record on civil cases getting affirmed recently, so I wouldn't be surprised to see the Supreme Court take a stricter approach." 

If only my prognosticative abilities extended to investments, as anyone viewing the horrific carnage of my recent mutual fund statements can ruefully attest it does not...  The Supreme Court unanimously reverses, holding that a 12(B)(6) motion is appropriate, but that the dismissal is without prejudice.

The only other Supreme Court case of interest is In re A.J.S., where the court holds that a juvenile court's finding of no probable cause in a mandatory bindover proceeding is appealable by the state.  What's of special interest in the case is that the court holds that the appropriate test for determining whether the judge should have found probable cause is the same test used for determining sufficiency of the evidence of a conviction.  If you've got an appeal on that issue, A.J.S. is a good read. 

Busy week in the courts of appeals -- 120+ cases -- so let's check that out...

Criminal.  Two cases from the 2nd District on search and seizure.  One holds that handcuffing suspect converted stop into arrest; while there might have been reasonable suspicion for stop, lack of probable cause for arrest requires suppression.  Other holds that while reasonable suspicion for patdown exists in all drug stops, there wasn't sufficient basis for stop... Two plea cases:  2nd District reverses itself, says that CrimR 11(C)(2)(a) does not require judge to advise defendant pleading to offense which carries mandatory time that he is not eligible for judicial release, while 6th District vacates plea where judge didn't tell defendant maximum sentences...

Civil.  10th District holds that attorney fee provision in payday lender's contract is invalid because of parties' unequal bargaining power... 5th District says dismissal too severe for failure to answer discovery, cites "unusual circumstance" where attorney had misplaced completed responses and didn't mail them out... 3rd District says that instant-messaging records were sufficiently authenticated by proponent's testimony... 5th District upholds denial of grandparents' motion to intervene in permanent custody case on grounds that their involvement with children were not sufficient... 9th District holds that arbitration provision in construction contract was procedurally and substantively unreasonable...

You had me at the request for a "PET brain scan."  In Stemple v. Dunina, Stemple filed a complaint seeking to declare Dunina a vexatious litigator.  In her response to summary judgment, Dunina

requested that the trial court order that Stemple submit to PET brain scans to determine his brain pathology. The motion also personally attacked Stemple's current attorney, James R. Kirkland, as well as Stemple's former attorney, Trisha Duff. Dunina requested that Kirkland be removed from the case because he, according to Dunina, was not acting in Stemple's best interest and had violated unspecified federal, state, and local laws. In other documents attached to the memorandum in opposition, Dunina alleged that Trisha Duff kidnaped Stemple and forced him to move to Florida. Dunina also alleged that Stemple has  engaged in male prostitution, as well as illegal drug and firearm trafficking. Dunina also opined that attorneys Duff and Kirkland both suffer from unspecified damage to the frontal lobes of their brains.

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Recent Entries

  • March 20, 2017
    Taking time off
    I'm taking the week off. Have a major brief due on Thursday, plus a trial in Federal court starting next Monday. Plus, I'm pretty sure that Obama wiretapped me, too, so I'm working on getting to the bottom of that....
  • March 17, 2017
    What's Up with the 8th?
    The 8th District cases come out every Thursday. By about ten o'clock in the morning, the court will have posted the "weekly decision list" on its web site. It will give a summary of the case, usually in a sentence...
  • March 14, 2017
    Rippo and Pena-Rodriguez
    SCOTUS issues decisions on judicial recusal and biased jurors
  • March 13, 2017
    Case Update
    A SCOTUS decision on career offenders, and appellate cases on what a judge can consider in sentencing, and untimely motions to suppress
  • March 9, 2017
    A switch in time
    The court reverses itself in Gonzalez
  • March 8, 2017
    What's Up in the 8th
    More sentencing stories, and the right way to handle an Anders brief
  • March 7, 2017
    Case Update
    Knock and announce and the Ohio Constitution, and Anders briefs.
  • March 6, 2017
    Never mind
    The Ohio Supreme Court reverses Gonzalez.
  • March 2, 2017
    Of bright lines and bookbags
    Oral argument in State v. Oles and State v. Polk
  • February 28, 2017
    What's Up in the 8th
    A good outcome in a search case, probably a good outcome (to be) in a drug case, and a very bad outcome in a child rape case