June 24, 2006
Not a whole lot for this week's roundup; hopefully, the golf handicaps of our appellate judges are declining in pace with those of the bar in general.
9th District holds that landlord shopping center's duty to tenant's employee is duty owed to a licensee, not an invitee; as concurring opinion points out, this isn't so... If you're defending a motion to vacate a default judgment, the 10th District's decision in Nat'l City Bank v. Calvey is the one to have: although motion filed only a month after default judgment for $125,000, court stringently applies "reasonable neglect" standard against defendant, says her claim that she was traveling to take care of her sick mother not sufficient excuse for failure to respond to complaint... Another round of plaintiff smackdown, this time from the 12th District: Plaintiffs asked jury for $542,000, got $9,000, court upholds it... 2nd District says trial court erred in not taking into consideration ex-husband's inheritance of $1,000,000 in determining modification of spousal support...
10th District follows its rule that, in any post-Blakely sentencing, failure of defendant to object to sentence at hearing waives all but plain error... Jury announces it's deadlocked after three hours of deliberation, judge gives dynamite charge, jury deliberates another 30 minutes, still says it's deadlocked, judge declares mistrial; 2nd District says that "manifest necessity" of declaring mistrial did not preclude retrial on double jeopardy grounds. Review was on plain error basis, though; defendant did not object to declaration of mistrial, or file motion for jeopardy prior to second trial... As noted last week, prosecutor's mentioning of defendant's invocation of Miranda rights is barred; 8th District holds that prosecution can bring out fact that defendant refused to make written statement where he first made oral statement...
Enjoy your weekend.
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