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8th District Roundup

Sometimes, I think the 8th District's decisions give a better glimpse of life in Cleveland than can be found in a travel guide.  And lest you think that Cleveland doesn't merit mention in a travel guide, Frommer's doesn't share that view; it breathlessly informs us that "this underrated city's abundance of locally owned restaurants is also helping Cleveland burnish its reputation as the 'epicenter of the Midwest food scene,' in the words of the Chicago Tribune."  Indeed, back in 2007, Cleveland's own Michael Symon won the Food Network's "Next Iron Chef" contest. 

In State v. Gillenwater, we learn that Steve Moree also possesses extraordinary culinary skills:  the police claim he's "the best cook of crack cocaine in Cleveland," with people coming from miles around to have him cook their cocaine.

One of those people is Gillenwater, whom the police see arrive, go into Moree's house, then leave after twenty minutes.  An order is given to stop Gillenwater's car, but before that, he fails to signal a left turn, then compounds his problems by making the dreaded "furtive movements" when he's stopped.  The police get him out of the car and put him in a cruiser, then search the car and find a gun.  He seeks to reverse the denial of his motion to suppress by relying on Gant v. Arizona, but the court correctly notes that Gant didn't change the law that the police can search a car for weapons when they have reasonable suspicion to do so. 

In State v. Studgions, we learn something Frommers is unlikely to tell us:  a lot of people here need the assistance of the public defender's office.  Studgions and his girlfriend show up there, but repair to the Blind Pig for drinks when they find the wait too long.  The choice of tavern is ironic, because many drinks and a somewhat nonsensical story later, Studgions bites his girlfriend in the eye.  Many drinks, did I say?  The hospital tells her to come back the next day because she's too drunk to be treated.  She does, and gets stitches, which allows the court to add to its extensive body of precedent holding that stitches, or even just a trip to the ER, is sufficient to show serious physical harm.

We also learn that Cleveland jurors are an obsessive lot, tending to dwell on evidence to the point that a curative instruction given in the morning won't solve the problem of inadmissible evidence tendered the night before.  In State v. Williams, that earns a reversal of a murder conviction.  Worthy of note here is that the court correctly finds that the statement at issue -- one given to a police detective, and testified to by him -- was a violation both of the hearsay rule and of Williams' right of confrontation under Crawford; the constitutional violation may well have played a part in determining that the error was enough to merit reversal.

Not so in several other cases, one of which we'll discuss in detail tomorrow.  In State v. Wilson, Wilson's being tried for possession of PCP, and the state wants to introduce proof of Wilson's 2002 conviction for possessing PCP to refute his claim in the present case that he didn't know he had any on him.  One problem:  that claim was made only in opening statement, but the trial judge nonetheless allowed it in during the state's case in chief.  If Wilson had testified -- he didn't -- it might have been admissible in rebuttal, but not in the case in chief.  No matter; in light of the other evidence, it's harmless.  The same fate befalls the defendant in State v. Hood, where the state introduces cell phone records in an attempt to link Hood to a killing and robbery.  The court holds that the records weren't properly authenticated -- rather than have someone from the cell phone company come in to testify that they were kept in the ordinary course and scope of business, the state merely had a detective essentially testify "this is what they sent me" -- but the majority of the panel concludes that's harmless, too.

In the civil area, some old friends show up.  My very first post on this blog dealt with the 8th District's decision in Olah v. Ganley, which found that an arbitration provision in a car purchase agreement was unconscionable.  The case ultimately went to trial, and the plaintiffs were awarded nearly $45,000.  Last week, the 8th reversed that, finding that the plaintiffs' claim that they were told they were purchasing a new vehicle with a 3-year warranty was barred by the parol evidence rule, in light of the fact that the contract specified they were purchasing a used car with a 2-year warranty.  The result was dictated by last year's decision in Williams v. Spitzer Autoworld, <sarcasm>one of the many consumer-friendly decisions handed down by the Ohio Supreme Court in recent years<sarcasm off>, in which they held that the parole evidence ruled barred plaintiffs from presenting extrinsic evidence contradicting a parties' final written contract to prove a violation of the Ohio Consumer Sales Practices Act.

And last year, I mentioned that a reader had alerted me to the fact that the 8th District had adopted the US Supreme Court's test in Bell Atlantic v. Twombly in determining whether a complaint could withstand a motion to dismiss under CivR 12(B)(6):  the plaintiff had the burden of setting forth claims that are not only conceivable, but plausible.  The 8th and 9th Districts are the only ones which have even cited Twombly, let alone adopted it, and the 8th does again last week in Fink v. 20th Century Homes, where a city claims that the plaintiffs' contentions that their home was damaged by the city's negligent maintenance of a sewer line aren't sufficient to withstand a Twombly challenge.  Not so, says the court, hinting that the city's claim might be better pursued on summary judgment, after more facts are in.

Another thing.  While checking to see if any other Ohio court had mentioned Twombly, I came across this 1959 1st District decision (which obviously refers to a different Twombly case).  Lexis' blurb about the case reads, in its entirety:

As a stepladder and a chicken ladder were held not to be simple tools, whether a defective ladder used by a painter was a simple tool was a jury question in the painter's personal injury action, making a judgment for farm owners improper.

Frommer's won't tell you this, but I will:  that's all you need to know about Cincinnati.


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