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Opinions Dec. 20, 2012

December 20, 2012
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7th Circuit Court of Appeals
Joshua Beller, a minor, by his next friend and mother, Melissa Welch, et al. v. Health and Hospital Corp. of Marion County Ind., d/b/a Wishard Memorial Hospital d/b/a Wishard Ambulance Service
11-3691
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge Tanya Walton Pratt.
Civil. Affirms summary judgment for the defendants on the plaintiffs lawsuit alleging violation of the Emergency Medical Treatment and Active Labor Act by failing to stabilize Welch and her son during an emergency medical situation. Because the Wishard ambulance was operating under the EMS protocol at the time the plaintiffs were in it, the plaintiffs had not come to the Wishard emergency department under the EMTALA, and the plaintiffs’ claim cannot succeed.

United States of America v. James Elliott
11-2766
U.S. District Court, Northern District of Indiana, Hammond Division, Chief Judge Philip P. Simon.
Criminal. Finds the District Court committed no error in finding that Elliott’s burglaries occurred on different occasions for purposes of the ACCA. The burglaries occurred on different days and involved different residences and victims. Under any plausible construction of the statute’s different-occasions language, the burglaries constituted distinct criminal episodes. Reconsideration of the approach that this court adopted in Hudspeth would not lead to a different result on the facts of this case. To the extent that the statute produces results that are perceived as unjust, the problem is one for Congress to fix rather than this court.

Christopher Parish v. City of Elkhart, Indiana, et al.
11-1669
U.S. District Court, Northern District of Indiana, South Bend Division, Judge Rudy Lozano.
Civil. Because the District Court’s rulings improperly limited the introduction of evidence relating to Parish’s innocence, and that evidence was critical to the damages issue, the award of damages cannot stand. The excluded evidence did not impact the jury’s consideration of the liability issue and that issue is not before us on appeal, and therefore a new trial is required only as to the damages issue. See Cobige v. City of Chicago, IL, 651 F.3d 780, 785 (7th Cir. 2011).  Accordingly, the jury’s determination of liability is affirmed, the award of damages is vacated, and the case remanded for a new trial as to the issue of damages only. Circuit Rule 36 shall apply on remand. Costs on appeal are to be taxed against appellees.

Indiana Court of Appeals
Jeffrey Higgenbottom v. State of Indiana (NFP)
49A05-1203-CR-108
Criminal. Affirms conviction of burglary, finding Higgenbottom is a habitual offender, and his 14-year sentence.

M.C.-G. v. M.G. (NFP)
29A02-1110-DR-978
Domestic relation. Dismisses wife’s appeal of the child custody and property division orders for lack of subject matter jurisdiction. Wife’s appeal of the modification order is timely, but the issues raised aren’t supported by a cogent argument. Denies husband’s request for appellate attorney fees.

Otto McGee v. State of Indiana (NFP)
49A02-1205-CR-376
Criminal. Affirms revocation of placement on home detention.

Michael B. Buckner v. State of Indiana (NFP)
36A05-1203-CR-166
Criminal. Affirms sentence for two counts of Class C felony incest.

In Re The Matter of the Adoption of A.S.P.: R.S.P. v. J.C.S. (NFP)

82A04-1205-AD-227
Adoption. Affirms denial of grandfather’s motion to intervene in a proceeding involving the adoption of his grandson.

Ronald Edward Madison v. State of Indiana (NFP)
71A04-1206-CR-332
Criminal. Affirms convictions of Class D felony resisting law enforcement and Class C misdemeanor operator never licensed.

John Chupp v. State of Indiana (NFP)
49A05-1206-CR-328
Criminal. Affirms denial of motion to correct erroneous sentence.

Anthony Anderson v. State of Indiana (NFP)
49A02-1205-CR-429
Criminal. Remands with instructions to rectify clerical errors in Anderson’s abstract of judgment and chronological case summary.

Kevin W. Black v. State of Indiana (NFP)
02A03-1205-CR-209
Criminal. Affirms sentence for Class D felony battery and Class A misdemeanor resisting law enforcement.

The Marion County Sheriff's Department v. Gwendolyn Y. Davis, individually and as Administratrix of the Estate of Anthony J. Robinson, Jr. (NFP)
49A04-1201-CT-14
Civil tort. Affirms denial of summary judgment for the sheriff’s department regarding the estate’s claims, but reverses denial of summary judgment regarding Davis’ individual claims.

Term. of the Parent-Child Rel. of J.M., M.M., A.M., and S.M.: R.M. & H.M. v. The Indiana Dept. of Child Services (NFP)
04A03-1204-JT-184
Juvenile. Affirms involuntary termination of parental rights.

Netiko Jones v. State of Indiana (NFP)
49A05-1205-CR-222
Criminal. Affirms convictions of Class A felony dealing in cocaine within 1,000 feet of a public park, Class B felony possession of cocaine, Class A felony possession of three or more grams of cocaine with intent to deliver and Class A misdemeanor resisting law enforcement.

Joseph B. O'Brien v. State of Indiana (NFP)
08A02-1204-CR-330
Criminal. Affirms conviction of Class D felony operating a vehicle as a habitual traffic violator.
 

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  1. A traditional parade of attorneys? Really Evansville? Y'all need to get out more. When is the traditional parade of notaries? Nurses? Sanitation workers? Pole dancers? I gotta wonder, do throngs of admiring citizens gather to laud these marching servants of the constitution? "Show us your billing records!!!" Hoping some video gets posted. Ours is not a narcissistic profession by any chance, is it? Nah .....

  2. My previous comment not an aside at court. I agree with smith. Good call. Just thought posting here a bit on the if it bleeds it leads side. Most attorneys need to think of last lines of story above.

  3. Hello everyone I'm Gina and I'm here for the exact same thing you are. I have the wonderful joy of waking up every morning to my heart being pulled out and sheer terror of what DCS is going to Throw at me and my family today.Let me start from the !bebeginning.My daughter lost all rights to her 3beautiful children due to Severe mental issues she no longer lives in our state and has cut all ties.DCS led her to belive that once she done signed over her right the babies would be with their family. We have faught screamed begged and anything else we could possibly due I hired a lawyer five grand down the drain.You know all I want is my babies home.I've done everything they have even asked me to do.Now their saying I can't see my grandchildren cause I'M on a prescription for paipain.I have a very rare blood disease it causes cellulitis a form of blood poisoning to stay dormant in my tissues and nervous system it also causes a ,blood clotting disorder.even with the two blood thinners I'm on I still Continue to develop them them also.DCS knows about my illness and still they refuse to let me see my grandchildren. I Love and miss them so much Please can anyone help Us my grandchildren and I they should be worrying about what toy there going to play with but instead there worrying about if there ever coming home again.THANK YOU DCS FOR ALL YOU'VE DONE. ( And if anyone at all has any ideals or knows who can help. Please contact (765)960~5096.only serious callers

  4. He must be a Rethuglican, for if from the other side of the aisle such acts would be merely personal and thus not something that attaches to his professional life. AND ... gotta love this ... oh, and on top of talking dirty on the phone, he also, as an aside, guess we should mention, might be important, not sure, but .... "In addition to these allegations, Keaton was accused of failing to file an appeal after he collected advance payment from a client seeking to challenge a ruling that the client repay benefits because of unreported income." rimshot

  5. I am not a fan of some of the 8.4 discipline we have seen for private conduct-- but this was so egregious and abusive and had so many points of bad conduct relates to the law and the lawyer's status as a lawyer that it is clearly a proper and just disbarment. A truly despicable account of bad acts showing unfit character to practice law. I applaud the outcome.

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