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Case Update

A couple of decisions, though nothing major, from the banks of the Potomac:  in 14 Penn Plaza v. Pyett, the Court held that collective bargaining agreements can require employees to submit age discrimination claims to arbitration, rather than filing suit, and in Harbison v. Bell, ruled that lawyers appointed by Federal courts to handle death penalty defendants' habeas claims can also represent them in state clemency proceedings.

Down in Columbus, sovereign immunity was again the issue in Doe v. Marlington Local School DistThe plaintiffs claimed that their daughter was sexually abused on a school bus because the driver was inattentive, but the court held that didn't matter; the exception to immunity for "negligent operation of a motor vehicle" applies only to the actual driving of the bus.  In State v. Rivas, the court decided that if the prosecutor gives you a written transcript of the instant messages from a computer hard drive, that's all you're going to get; you're not entitled to have your expert inspect the actual drive unless you can make a prima facie showing that the data the state provided is false, incomplete, or adulterated.  And six more disciplinary cases, the most unusual of which is Disciplinary Counsel v. ShaverShaver came up with a way of minimizing the costs of transporting client files when moving his office:  he threw some in a dumpster, and left another twenty boxes of them sitting next to it.  It wound up on TV -- what doesn't nowadays? -- and that earns him a public reprimand. 

On to the courts of appeals...

Civil.  Husband works 33 years as salesman for company, sales volume goes down, he gets fired for refusing to provide daily sales reports; 11th District holds trial court abused its discretion in determining termination was involuntary and modifying spousal support... 9th District says that where wife claims divorce journal entry court signed didn't reflect actual in-court agreement, doesn't need to file motion to vacate, but can take issue up on direct appeal... 12th District says punitive damage award -- twice the amount of compensatory damages -- didn't violate due process...

Criminal.  Corrections officer takes $150 bribe to deliver $350 to inmate, 9th District holds bribery and conveying prohibited item into correctional facility aren't allied offenses, he can be convicted of both... 12th District notes that assault isn't lesser included offense of domestic violence -- both have same penalty...  5th District affirms rule that trial court has no jurisdiction to consider motion to withdraw plea once court of appeals affirms conviction... 12th District says that trial court's reference in sentencing to language declared unconstitutional in Foster requires vacating sentence; also reminds us that while trial court doesn't need to make findings for prison sentence, does need to make findings to give probation where prison sentence is presumed... 9th District reverses denial of post-conviction relief, says that res judicata doesn't bar ineffective assistance of counsel claims where those claims could not have been raised on direct appeal... 11th District says trial court erred in amending indictment for child endangering to include allegation of serious physical harm, since this elevated crime from 1st degree misdemeanor to 3rd degree felony... 2nd District says trial court didn't err in allowing expert testimony on characteristics of abused children, and opinion that child had been abused...

Malpractice trap.  Under the old savings statute, if you voluntarily dismissed an action, you had a year to refile it -- unless you dismissed it before the statute of limitations had run, in which case you only had until the statute ran to refile it.  Example:  accident happens on April 25, 2003, you file suit, dismiss suit on April 26, 2005.  You have until April 26, 2006, to refile it.  Same facts, except you dismiss suit on April 24, 2005; since the statute hadn't yet expired, you have to refile the next day.  The legislature amended the savings statute, RC 2305.19, to eliminate this:  you now get the full year to refile, regardless of when you dismiss.  The wrongful death statute, though, has its own savings statute, and that wasn't amended.  In Presley v. Fraley, the 10th District holds that the statute is unconstitutional in that respect, and should work the same as the amended 2305.19. 

There's a surprise.  Three months ago, for my Bullshit Case of the Month, I mentioned Dolores Karnofel's pro se lawsuit against the Lance Armstrong Foundation for injuries she suffered "due to [her nephew] shooting a yellow Lance Armstrong ‘Live Strong’ bracelet at her."  Last week the 11th District affirmed a lower court finding that she was a vexatious litigator with regard to a claim she'd filed against a hospital.  Part of the claim was that the hospital had misdiagnosed her mental condition.

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