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8th District Roundup

If you're looking for me to provide my weekly dose of criticism for the 8th's decisions, look elsewhere:  28 opinions this week, not a dud in any of them, and several of them providing lengthy, thoughtful opinions on both civil and criminal matters.

State v. Arnold provides the obligatory weekly smackdown of the State on a 4th Amendment issue.  In this case, the police were looking for a guy named Martin, and enlisted Arnold, who was Martin's roommate, to assist in the search.  The detective said they'd use his vehicle, and before letting Arnold get in the car, patted him down for "officer safety" and found two Ecstasy tablets.  The universe may be infinite, and there are no doubt planets on which such a search would pass constitutional muster; Earth, alas, is not one of them. 

State v. Bess provides a fascinating factual situation.  After Bess' stepdaughter made allegations of sexual abuse against him in 1989, he fled Ohio.  He was apprehended in Georgia and extradited back here in 2007.  At that point, his stepson came forward with claims that he was also abused back in 1991, and Bess was indicted for that as well.  That's well beyond the six-year statute of limitations, but the State hangs its hat on RC 2901.13(G), which provides "the period of limitation shall not run during any time when the accused purposely avoids prosecution."  The trial judge ruled that "prosecution" is limited to the instant offense, not any prosecution; since the stepson had not made any allegations back then, there was no prosecution for that case, and the statute wasn't tolled.  Two of the appellate judges agree, and while the dissent probably has the better argument, both majority and minority opinions are well-crafted and sourced.  It probably helped in that regard that the discussion was academic; the opinion notes that Bess was convicted of the offense involving his stepdaughter and is serving a life sentence.

Several worthwhile civil decisions, too.  National Court Reporters had set up a court reporter referral service, based here in Cleveland.  A Maryland law firm had gone to their website and contacted for deposition services in Maryland and Kansas.  The parties exchanged faxes and phone numbers, and the firm sent National a check here in Ohio.  Not enough, it turns out, so National sued here in Cuyahoga County.  The judge tossed it, finding that Ohio didn't have personal jurisdiction over the law firm, and in National Court Reporters v. Strandberg, the 8th agrees.  The opinion does an excellent job of analyzing the two factors -- whether the long-arm statute would permit the exercise of jurisdiction, and whether if so the exercise would offend notions of due process.  If you handle cases where the issue arises, this is a keeper. 

I've previously suggested that much of the problem with home contractors could be solved by having every third one of them summarily shot, but Mihelich v. Active Plumbing shows the other side.  The Mihelich's were remodeling their kitchen, and contracted with Active to provide custom cabinets for $34,105.  Two days later, hubby sends a letter accusing Active of "bait and switch," and requesting that the company contact him at their "earliest convenience to communicate your action plans to correct this situation."  After a few weeks' of renegotiations failed to produce a satisfactory resolution, Active sent a letter canceling the contract and enclosing a refund for the deposit.

The Mihalich's sued a year later, and the judge's "action plans" consisted of giving judgment for the defendants after a bench trial, a result the 8th affirmed last week.  The legal lesson of Mihelich is that if one party cancels a contract, the other party can't sue for breach if they acquiesce in the cancellation; here, the Mihelich's did so by failing to notify Active that they were disputing the termination.  In this instance, the case law cited by the court doesn't provide as firm a foundation as one might like;  those cases involve situations where a party took action which was clearly consistent with acquiescence in the contract's repudiation, rather than simply failing to protest the action. 

Then again, at least from the court's opinion it is difficult to discern how the Mihelich's were damaged at all, let alone to the tune of the quarter million dollars they claimed, an amount the appellate panel agreed with the trial court was "completely unsupported and absurd."  (And that doesn't include their damages for "emotional distress"; that claim got tossed on summary judgment.)   All this leads one to believe that Mihelich was intended to provide the greater moral lesson:  don't be a jerk.


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