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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. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  2. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  3. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  4. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

  5. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

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