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Opinions April 9, 2013

April 9, 2013
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7th Circuit Court of Appeals
Nancie Cloe v. City of Indianapolis
12-1713
Civil/discrimination. Affirms District Court grant of summary judgment to Indianapolis on Nancy Cloe’s argument that the city failed to reasonably accommodate her injury, but reversed and remanded the District Court’s summary judgment against Cloe’s claims that she was discriminated against and faced retaliation for requesting a work accommodation be made because of her disability.

United States of America v. Tristan Davis

12-3552
Criminal. Affirmed the 18-month sentence for Tristan Davis on two counts of lying to gun dealers. However, the court pointed to confusion over how much discretion a prosecutor has in deciding to file a motion for a sentence reduction under U.S.S.G. 3E1.1(b). In this case, the prosecutor only filed a motion for a two-level reduction because Davis would not waive his right to appeal. Although the 7th Circuit acknowledged its decision in United States v. Deberry holds that section 3E1.1(b) confers an entitlement on the prosecutor, it also noted the courts of appeals have been split with some reaching a conclusion different from Deberry. Consequently, the 7th Circuit called upon the U.S. Supreme Court or the U.S. Sentencing Commission to resolve the conflict.

The following 7th Circuit opinion was released Monday after IL deadline.
NES Rentals Holdings, Inc., et al., v. Steine Cold Storage, Inc.
12-1401
Civil. Affirms District Court grant of summary judgment in favor of Steine Cold Storage, holding that the indemnification clause in an equipment-rental agreement does not expressly state, in clear and unequivocal terms as Indiana law requires, that Steine agreed to indemnify NES for NES’s own negligence.

Indiana Court of Appeals
Virgil D. Cornelious v. State of Indiana
49A04-1206-CR-335
Criminal. Affirms conviction of Class B felony aggravated battery and habitual offender determination resulting in a sentence of 30 years in prison, finding that the victim of a stabbing suffered serious permanent disfigurement and that applying the habitual offender statute was not an abuse of discretion.

Danielle Helms v. Max H. Rudicel, M.D., Open Door/BMH Health Clinic (a division of Cardinal Health Systems), Cardinal Health Systems, d/b/a Ball Memorial Hospital, et al.
18A04-1202-CT-70
Civil tort. Affirms in part, reverses in part and remands to the trial court. The federal decision is not res judicata as to BMH’s potential liability as the doctor and clinic’s apparent principal and there is a fact question as to such apparent agency; summary judgment for BMH was error. The trial court correctly found BMH might be vicariously liable for any act of Dr. Max Rudicel or a nurse practitioner at BMH.

Adam Morris v. State of Indiana
14A05-1209-CR-495
Criminal. Affirms the one-year, fully executed sentence of Adam Morris but reverses the trial court’s order that Morris pay $14,972.45 restitution. The Court of Appeals found his sentence to be appropriate, given his character and his offense, and it held although the terms of probation were included in the plea agreement, the lower court was not required to grant probation. However the COA ruled the trial court could not order Morris to pay restitution since the plea agreement made no mention of restitution.

Jorge L. Gonzalez v. State of Indiana (NFP)
20A05-1206-CR-335
Criminal. Affirms three convictions of Class A felony dealing in cocaine and 50-year sentence.

Jeffrey L. Jones v. State of Indiana (NFP)
87A05-1210-CR-546
Criminal. Affirms conviction of Class B misdemeanor battery.

Antonio L. Freeling v. State of Indiana (NFP)

02A05-1210-CR-556
Criminal. Affirms conviction of Class C felony robbery.

In Re: The Paternity of J.M., Jo.M. v. M.J. (NFP)
55A01-1210-JP-477
Juvenile paternity. Remands trial court order that father Jo.M. pay educational support for his daughter, ordering clarification of the order and father’s obligations to pay toward educational support and child support arrearage.

Darnell Chivers v. State of Indiana (NFP)

24A01-1205-PC-206
Post conviction. Affirms denial of relief from his 20-year sentence for convictions of Class B felony counts of armed robbery and two counts of Class B felony criminal confinement.

Stanley Short v. State of Indiana (NFP)
69A01-1204-CR-154
Criminal. Affirms conviction of Class C felony escape.

Darnell Tinker v. State of Indiana (NFP)
02A03-1112-CR-587
Criminal. Reaffirms on rehearing conviction for unlawful possession of a firearm by a serious violent felon and his sentence as a habitual offender.

Tori R. Driver v. Todd W.A. Driver (NFP)
20A04-1208-DR-437
Domestic relations. Reverses and remands modification of child support, instructing the trial court  to include father’s bonuses as part of weekly gross income for calculation purposes.

William Gordon v. Toyota Motor Manufacturing of Indiana (NFP)
93A02-1211-EX-910
Executive administration/workers compensation. Vacates the board’s decision adopting and affirming the decision of the single hearing member and remands to the board with instructions to issue findings of fact and conclusions which comport with the Indiana Administrative Orders and Procedures Act such that the court can conduct, if necessary, appellate review of the board’s determination.

Termaine T. Fields v. State of Indiana (NFP)

02A03-1206-CR-278
Criminal. Affirms conviction of Class D felony residential entry, Class A misdemeanor domestic battery and determination as a habitual offender.

In Re The Marriage of Laura R. Chickadaunce and Mark A. Chickadaunce; Laura R. Chickadaunce v. Mark A. Chickadaunce (NFP)
77A01-1206-DR-287
Divorce. Affirms dissolution of marriage order.

John T. Haub, Jr. v. State of Indiana (NFP)
88A01-1206-CR-297
Criminal. Affirms in part, reverses in part and remands convictions of two Class C felony counts of burglary, three Class C felony counts of auto theft, a Class C felony count of receiving stolen auto parts, a Class A misdemeanor count of driving while suspended and an adjudication as a habitual offender. Remanded with instructions to vacate the second burglary conviction and to correct the sentencing order to provide that the habitual offender enhancement applies to a particular offense.

Justin M. Lewis v. State of Indiana (NFP)
12A04-1210-CR-556
http://media.ibj.com/Lawyer/websites/opinions/index.php?pdf=2013/april/04091302tac.pdf
Criminal. Affirms convictions of Class D felony counts of criminal confinement and domestic battery; Class A misdemeanor counts of possession of marijuana and possession of paraphernalia; a Class B misdemeanor count of criminal mischief and adjudication as an habitual offender.

Dennis Fahlsing v. Shannon Fahlsing and Angela Taylor (NFP)
57A05-1211-CC-584
http://media.ibj.com/Lawyer/websites/opinions/index.php?pdf=2013/april/04091302par.pdf
Collections. Affirms denial of summary judgment in favor of defendants and order staying the action and compelling arbitration.

Robert Hamilton v. Jerry Ablitar (NFP)

07A04-1209-SC-496
Small claims. Affirms judgment in favor of Ablitar.

Enri Franklin v. State of Indiana (NFP)
49A05-1209-CR-464
Criminal. Affirms conviction of Class B misdemeanor public intoxication. 

Martize Sevion v. State of Indiana (NFP)
18A04-1207-CR-384
Criminal. Affirms in part and reverses in part convictions on two counts of Class B felony criminal confinement, two counts of Class C felony intimidation and one count of Class D felony pointing a firearm, and adjudication as a habitual offender. The pointing a firearm conviction must be reversed as double-jeopardy.

Indiana Supreme Court and Indiana Tax Court issued no opinions Tuesday by IL deadline.
 

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  1. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  3. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  4. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  5. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

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