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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

  • May 25, 2017
    "Clarifying" post-release controls
    A look at the Supreme Court's decision in State v. Grimes
  • May 23, 2017
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    Allied offenses, and two search cases
  • May 23, 2017
    What's Up in the 8th
    Allied offenses, and two search cases
  • May 22, 2017
    Case Update
    Is SCOTUS looking for a forfeiture case? Plus, appellate decisions on expungement and restitution, plain error, and what a judge has to tell a defendant about sex registration
  • May 19, 2017
    What's Up in the 8th - Part II
    Decisions on lineups and prior calculation and design, and two out of eight (eight!) pro se defendants come up winners,
  • May 17, 2017
    What's Up in the 8th - Part I
    Taking a first look at some of the 8th District's decisions over the past two weeks
  • May 16, 2017
    Case Update
    Stock tips, Federal sentencing reform goes dormant, schoolbag searches, and the retroactivity of State v. Hand
  • May 8, 2017
    Case Update
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    Case Update
    SCOTUS closes out oral argument for the Term, the Ohio Supreme Court has seven of them this week, and we report on a decision where you'll probably want to play Paul Simon's "Still Crazy After All These Years" in the background while you read about it