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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. Indianapolis Bar Association President John Trimble and I are on the same page, but it is a very large page with plenty of room for others to join us. As my final Res Gestae article will express in more detail in a few days, the Great Recession hastened a fundamental and permanent sea change for the global legal service profession. Every state bar is facing the same existential questions that thrust the medical profession into national healthcare reform debates. The bench, bar, and law schools must comprehensively reconsider how we define the practice of law and what it means to access justice. If the three principals of the legal service profession do not recast the vision of their roles and responsibilities soon, the marketplace will dictate those roles and responsibilities without regard for the public interests that the legal profession professes to serve.

  2. I have met some highly placed bureaucrats who vehemently disagree, Mr. Smith. This is not your father's time in America. Some ideas are just too politically incorrect too allow spoken, says those who watch over us for the good of their concept of order.

  3. Lets talk about this without forgetting that Lawyers, too, have FREEDOM OF SPEECH AND ASSOCIATION

  4. Baer filed with the U.S. Court of Appeals Seventh Circuit on April 30 2015. When will this be decided? How many more appeals does this guy have? Unbelievable this is dragging on like this.

  5. They ruled there is no absolute right to keep a license, whether it be for a lifetime or a short period of time. So with that being said, this state taught me at the age of 15 how to obtain that license. I am actually doing something that I was taught to do, I'm not breaking the law breaking the rules and according to the Interstate Compact the National Interstate Compact...driving while suspended is a minor offense. So, do with that what you will..Indiana sucks when it comes to the driving laws, they really and truly need to reevaluate their priorities and honestly put the good of the community first... I mean, what's more important the pedophile drug dealer or wasting time and money to keep us off the streets?

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