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Case Update

The birthday went quite well, thanks for asking.  I had told the others in my office that I didn't want anyone spending more than $50 for a birthday present for me, and I can happily report that no one had any problem complying with that request.  What's more, the Ohio Supreme Court actually came down with some decisions.

None particularly earth-shattering, mind you.  In Heintzelman v. Air Experts, the plaintiffs had obtained a judgment against a tortfeasor, then filed a supplemental complaint against his insurer, only to find that the insurer had obtained a default declaratory judgment against the tortfeasor stating that it had no duty to defend him.  Are the plaintiffs bound by that?  No, says the court in examining the statutes and drawing simple rules:  one suing an insurer on a supplemental complaint is bound by an earlier declaratory judgment action if the insured initiated it, or if the plaintiff is an assignee of the insured.  But if a plaintiff is a judgment creditor, they're not bound unless they were joined in the declaratory judgment action. 

One other civil decision of note.  You're representing a plaintiff in a tort action, and he completely bollixes his deposition.  Can you create a "genuine dispute of fact" and thereby avoid summary judgment by having him submit an affidavit that contradicts his deposition testimony?  No, said the court four years ago in Byrd v. Smith, unless the contradiction was sufficiently explained.  Pettiford v. Aggarwal extends that same rule to a retained expert whose affidavit is inconsistent with his deposition testimony.  The court leaves for another day the question of whether that rule should apply to a non-party witness, or to a non-retained expert, e.g., a treating physician who "is not being compensated for his or her testimony."  That day may never come for the second instance, since the existence of a doctor willing to appear uncompensated at a deposition is as debatable as that of Sasquatch, beef jerky commercials notwithstanding.

So let's take a look at what happened in the courts of appeals...

Criminal.  1st District holds that witness' testimony in juvenile bind-over hearing could be read at trial where witness was unavailable, since defendant had opportunity to cross-examine witness in hearing, and had similar motive to develop the testimony... Trial court must state findings for denial of expungement, either in writing or orally at hearing, says 8th District... 10th District upholds grant of motion to suppress, agrees that defendant's statement to deputies requesting permission to search car, "if that is what you guys want to do," did not constitute consent to search... Trial court can't dismiss indictment with prejudice "unless it is apparent that defendant has been denied either a constitutional or statutory right, the violation of which, in itself, would bar prosecution," 8th District rules...

Civil.  Even where parties have entered into agreement to change custody, trial court has independent duty to find that such change is in best interests of child, says 2nd District... Trial court abuses discretion in granting new trial for weight of evidence where substantial evidence supports verdict, 8th District rules; good discussion of subject... 10th District reverses grant of summary judgment, says evidence shows genuine dispute of fact as to whether plaintiff's release with defendant's insurance company four days after auto accident should be set aside for mutual mistake of fact... Dismissal of 3rd-party complaint for contribution upheld, no right to contribution where plaintiff's claim is based on intentional tort, says 3rd District... Clear liquid on floor was not open and obvious danger, says 2nd District, reverses grant of summary judgment...

Ever helpful.  A routine traffic stop led to the pat-down of the defendant in State v. Allen, and the discovery of twenty-four grams of crack cocaine.  "When Officer Beavers asked another officer what degree of felony possession of twenty-four grams of crack cocaine constituted, Allen volunteered that the cutoff amount for a second-degree felony was twenty-five grams."  Allen's knowledge of narcotics law, alas, was greater than his knowledge of search and seizure law; the 2nd District affirms the denial of his motion to suppress. 

Bullshit prosecution of the week.®  In State v. Powell, the police broke up a dice game; Powell was apprehended, and the dice and $600 he'd thrown in the flowerbed of a house was recovered.  When the cops advised him that the $600 was going to be confiscated, he told them "go ahead and keep that money, don't take me to jail, we can act like you never found anything, let me go."  The 2nd District upholds his conviction for bribery.


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