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What's Up in the 8th

Criminal defendants live large this week, winning three of fourteen felony cases.  Yes, I know that doesn't sound like a big deal, but considering that was the total for the previous three weeks combined, it is.  And while rarely a week goes by that some decision or another from the 8th causes me to furrow my brow in puzzlement, shock, or horror, not so this week:  good work abounds.  In fact, two of the decisions are so notable that they merit individual treatment, which they'll get tomorrow and Thursday.  Let's take a look at the others.

A couple of child molestation cases come up.  In State v. Bonner, the defendant seeks to withdraw his plea to sexually abusing his two- and five-year-old daughters.  That he agreed to an 11-year sentence, rather than the life sentence without parole that such charges bring, was one problem with his claim.  That he was now arguing that his lawyer didn't fully inform him about what he was doing, when he voiced no such concerns at the plea and sentencing, was another.  That he waited five years to file his motion to withdraw was simply icing on the cake.

The defendant in State v. Bokisa claims the judge failed to consider the seriousness and recidivism factors before imposing his five-year sentence for gross sexual imposition and abduction of his granddaughters.  The opinion's lengthy quote from the sentencing transcript belies that assertion, but what caught my eye is this comment from the trial judge:

With all due respect, I never think that a request for leniency is appropriate in a case any more than I think a request for harshness is appropriate. I believe a request for fairness is what any judge should strive to achieve.

There are a lot of people who need to remember this.

Back when Arizona v. Gant was decided, I suggested it wasn't as broad as some people thought, a view that's reinforced by State v. RobinsonPulled over after a traffic violation, Robinson helpfully volunteered that he had "some weed," even showing the officers a bag of it.  After placing him in the cruiser, the officers searched the car, finding more drugs and a gun.  The trial judge tossed it, believing that the police needed a warrant for the search, but the appellate panel correctly points out that Gant did not change pre-existing law that if the police have probable cause to believe that a car contains contraband, they can search it without a warrant.

A rare speedy trial win comes in State v. Jenkins.  The opinion crunches a lot of numbers, but symptomatic of the problem is that the trial judge took 200 days to rule on the motion to dismiss for speedy trial.  Notable points: 

  • If court does not explain the reason for its own continuance of a trial date (i.e., doesn't say it was continued because court was in trial on another matter, for example), time isn't tolled
  • While time is tolled between dismissal and reindictment, the speedy trial clock doesn't start anew, but picks up where it left off
  • Time is only tolled for "reasonable period" for trial court to rule on motion; of that 200 days, only 30 was tolled

A couple of civil cases of note.  Back in the early days of this blog, I did several posts on arbitration clauses, like this one; so many, in fact, that Lexis concluded I was an expert in the subject, as I discussed here.  Back then, the 8th treated such clauses with disdain.  Driven by several Ohio Supreme Court decisions stressing the preference for arbitration as a means of resolving disputes, avoiding an arbitration clause is a much more daunting endeavor, as the plaintiff learns in Mak v. Silberman.  He'd entered into an operating agreement to acquire real estate, with the belief he'd be able to move his medical offices into the new building that would be cosntructed on the property.  When no building happened, he sued to rescind the operating agreement on grounds of fraud, and argued that the arbitration provision shouldn't apply because the fraud he was complaining of occurred before the agreement, and the arbitration provision, was entered into. 

No go:  since the provision required that "any dispute or claim arising out of or relating to" the agreement was subject to arbitration, the provision was to be construed broadly, and even fraud in the inducement fell within it, unless the plaintiff could show that the arbitration provision itself was fraudulently induced.  Good luck with that.  To be sure, this was a business contract, and such provisions have always been enforced rigorously, but there's not much recent case law to indicate that provisions in consumer contracts are going to be given more exacting scrutiny, as appeared to be the trend four or five years ago. 

And the "rose by any other name" award this week goes to Nationwide Insurance Company.  Which doesn't exist; its actual name is Nationwide Mutual Insurance Company.  So there.  That became an issue because the plaintiff in Milos v. John Doe had sued Nationwide Insurance Company, voluntarily dismissed the action, then refiled the action, subsequently amending the second complaint to name "Nationwide Mutual Insurance Company."  Not good enough, Nationwide -- oops, Nationwide Mutual Insurance Company -- claimed:  since it had not been correctly named in the first suit, the new one didn't "relate back" to the first, and so the statute of limitations barred the action against it.  All this despite the fact that the first lawsuit was served on Nationwide at its business address, and the company filed an answer and defended in the case. 

The trial court bought it, but the 8th reverses, noting the difference between "a misnomer in the name of the entity sued, as opposed to suing the wrong defendant or a nonexistent company."  In fact, Nationwide's argument borders on the frivolous; back in 1982, in a case virtually on "all fours," as we say in the legal biz (although the phrase has substantially different connotations in the porn biz), the Supreme Court rejected an identical contention, noting that

The spirit of the Civil Rules is the resolution of cases upon their merits, not upon pleading deficiencies... pleading is not a game of skill in which one misstep by counsel may be decisive to the outcome.

There are a lot of people who need to remember this, too.


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