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Opinions Dec. 27, 2012

December 27, 2012
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7th Circuit Court of Appeals
Thursday
United States of America v. Fairly W. Earls
11-3347
U.S. District Court, Northern District of Indiana, Hammond Division. Judge Joseph S. Van Bokkelen.
Criminal. Affirms conviction of making a false statement on a passport application, aggravated identity theft and knowingly transferring a stolen identification document. Affirms the admission of certain evidence at Earls’ trial and finds the District Court did not err in its calculation of his offense level.

Wednesday
Douglas Richards, et al. v. National Labor Relations Board and United Steel, et al.
12-1973, 12-1984
On petitions for review of decisions and orders of the National Labor Relations Board. Dismisses the petitions for review because the petitioners no longer suffer an injury-in-fact and do not satisfy the statutory “aggrieved” requirement.


Indiana Court of Appeals
Thursday

Medea Woods v. State of Indiana
39A05-1204-CR-189
Criminal. Affirms denial of Woods’ partial motion to dismiss. Finds the state has alleged sufficient facts when the charging information and probable cause affidavit are considered together.

Slavojka Pistalo v. Progressive Casualty Insurance Company and The Estate of Iris M. Wilks, Deceased
45A04-1204-PL-214
Civil plenary. Reverses summary judgment in favor of Progressive on Pistalo’s direct action against the company seeking a $333,600 excess judgment, which included post-judgment interest. Finds summary judgment was inappropriate because the issue of whether Progressive acted in bad faith has not been established in the designated materials as a matter of law. Remands for further proceedings.

Indiana Rail Road Company v. John Blaine Davidson, Admin. of the Estate of Carolyn Davidson, Deceased, and Tonya Kincaid, as Mother and Next Friend of Cierra Kincaid, a Minor
84A01-1202-CT-81
Civil tort. Affirms summary judgment in favor of John Blaine Davidson and Tonya Kincaid with respect to Indiana Rail Road’s claim that their cause is preempted by federal law. The trial court properly denied the railroad’s motion for partial summary judgment, concluding that a genuine issue of material fact exists as to whether federal preemption precludes the appellees’ claims with respect to the adequacy of traffic warning devices.

John T. Brightwell v. State of Indiana (NFP)
45A03-1205-CR-218
Criminal. Reverses denial of motion to correct erroneous sentence and remands for correction.

Eric D. Smith v. State of Indiana (NFP)
49A02-1206-CR-460
Criminal. Denies Smith’s motion for leave to file an appeal and dismisses it with prejudice.

Term. of the Parent-Child Rel. of R.D. (Minor Child), and M.D. (Father) v. The Indiana Dept. of Child Services (NFP)
79A02-1205-JT-394
Juvenile. Affirms termination of parental rights.

Todd Fuller v. State of Indiana (NFP)
02A03-1205-CR-223
Criminal. Affirms 3-year sentence for Class D felony domestic battery in the presence of a child and Class A misdemeanor interference with the reporting of a crime.

Michael Craig v. State of Indiana (NFP)
49A02-1205-CR-395
Criminal. Affirms convictions of Class B felony burglary, Class D felony theft and adjudication as a habitual offender.

Lee E. Davis, Jr. v. State of Indiana (NFP)
02A04-1205-CR-241
Criminal. Affirms sentence for Class B felony robbery.

Kent A. Easley v. State of Indiana (NFP)
73A01-1207-CR-333
Criminal. Affirms denial of petition for post-conviction relief.

Donald and Jennie Walker v. Glenn Sermersheim (NFP)
29A02-1204-CC-338
Civil collections. Affirms order awarding the Walkers’ former attorney $14,800. Denies Sermersheims’ request for attorney fees.

Mark A. Guffey v. Deborah L. Guffey (NFP)
36A01-1204-DR-171
Domestic relation. Affirms denial of father’s request to modify custody and the trial court’s modification of his parenting time and child support obligation, and the finding that he owed a child support arrearage.

David Darst v. Indiana Dept. of Correction and Bruce Lemmon in his official capacity as Commissioner (NFP)
46A03-1206-CT-288
Civil tort. Reverses dismissal of Darst’s claims against the DOC, but affirms dismissal of his claim against Lemmon.

Robert J. Pearson v. State of Indiana (NFP)
84A04-1204-CR-221
Criminal. Affirms revocation of probation.

Elbert M. Jones, II v. State of Indiana (NFP)
02A04-1204-CR-216
Criminal. Affirms conviction and sentence for Class B felony robbery.

Mark Allen Pratt v. State of Indiana (NFP)
76A04-1205-CR-268
Criminal.  Affirms conviction of Class C felony child molesting.

Wednesday
Leslee Orndorff v. Indiana Bureau of Motor Vehicles, R. Scott Waddell, in his official capacity as Commissioner of the Indiana Bureau of Motor Vehicles
53A04-1206-PL-299
Civil plenary. Reverses denial of Orndorff’s request for a preliminary injunction on suspending her license and remands for further proceedings. Finds she has a reasonable likelihood of succeeding on the merits of her laches defense and has carried her burden to establish the other requirements for a preliminary injunction.

Lisa A. Birkhimer v. Neil S. Birkhimer
29A02-1111-DR-1058
Domestic relation. Finds the following issues require remand to the trial court: the trial court did not include Lisa’s debt to her father in the marital estate; the court allowed Lisa to deduct certain expenses from her income for child support purposes, but did not make findings supporting these deviations from the Child Support Guidelines; and the parties both agree that because Lisa is responsible for paying the children’s controlled expenses, the parenting time credit should be applied to Neil. Affirms in all other respects and remands with instructions.

Sharif Fields v. State of Indiana (NFP)
49A04-1205-PC-249
Post conviction. Affirms denial of petition for post-conviction relief.

Billy Adams v. State of Indiana (NFP)
49A02-1205-CR-422
Criminal.  Affirms convictions of Class C felony criminal confinement and Class D felony domestic battery.

Robert D. Ratcliff v. State of Indiana (NFP)
85A05-1205-CR-248
Criminal. Affirms convictions and sentence for Class C felony burglary and Class D felony auto theft.

In Re the Paternity of C.C.M.: M.M. v. V.K.H. (NFP)
64A03-1205-JP-230
Juvenile. Reverses parenting time order and remands for a redetermination of that issue in accordance with the opinion. Affirms trial court did not abuse its discretion in declining to hold mother in contempt and order father pay a portion of mother’s attorney fees.

In Re the Involuntary Term. of the Parent-Child Rel. of K.R.: D.R. v. The Indiana Dept. of Child Services (NFP)
18A02-1202-JT-104
Juvenile. Affirms involuntary termination of parental rights.

Christopher White v. State of Indiana (NFP)
49A04-1203-PC-102
Post conviction. Affirms conviction of Class C felony fraud on a financial institution and denial of White’s petition for post-conviction relief.

Allen Clark v. State of Indiana (NFP)
49A05-1204-CR-188
Criminal. Affirms sentence for Class B felony attempted rape and Class A misdemeanor battery.

Jonathon P. Grigsby v. State of Indiana (NFP)
84A01-1205-CR-238
Criminal. Affirms reinstatement of previously suspended sentence following revocation of Grigsby’s probation.

Karl Kapanke, Universal Am-Can, Ltd., and M.C. Schmitt Trucking, Inc. v. James Stovall and Tracy Stovall (NFP)
45A03-1201-CT-12
Civil tort. Affirms judgment for the Stovalls on their claims of negligence and loss of consortium following a jury trial.

Jeffrey Adams v. State of Indiana (NFP)
48A02-1205-CR-385
Criminal. Affirms revocation of probation and execution of the remainder of Adams’ suspended sentence.
 

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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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