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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. I can understand a 10 yr suspension for drinking and driving and not following the rules,but don't you think the people who compleate their sentences and are trying to be good people of their community,and are on the right path should be able to obtain a drivers license to do as they please.We as a state should encourage good behavior instead of saying well you did all your time but we can't give you a license come on.When is a persons time served than cause from where I'm standing,its still a punishment,when u can't have the freedom to go where ever you want to in car,truck ,motorcycle,maybe their should be better programs for people instead of just throwing them away like daily trash,then expecting them to change because they we in jail or prison for x amount of yrs.Everyone should look around because we all pay each others bills,and keep each other in business..better knowledge equals better community equals better people...just my 2 cents

  2. I was wondering about the 6 million put aside for common attorney fees?does that mean that if you are a plaintiff your attorney fees will be partially covered?

  3. I expressed my thought in the title, long as it was. I am shocked that there is ever immunity from accountability for ANY Government agency. That appears to violate every principle in the US Constitution, which exists to limit Government power and to ensure Government accountability. I don't know how many cases of legitimate child abuse exist, but in the few cases in which I knew the people involved, in every example an anonymous caller used DCS as their personal weapon to strike at innocent people over trivial disagreements that had no connection with any facts. Given that the system is vulnerable to abuse, and given the extreme harm any action by DCS causes to families, I would assume any degree of failure to comply with the smallest infraction of personal rights would result in mandatory review. Even one day of parent-child separation in the absence of reasonable cause for a felony arrest should result in severe penalties to those involved in the action. It appears to me, that like all bureaucracies, DCS is prone to interpret every case as legitimate. This is not an accusation against DCS. It is a statement about the nature of bureaucracies, and the need for ADDED scrutiny of all bureaucratic actions. Frankly, I question the constitutionality of bureaucracies in general, because their power is delegated, and therefore unaccountable. No Government action can be unaccountable if we want to avoid its eventual degeneration into irrelevance and lawlessness, and the law of the jungle. Our Constitution is the source of all Government power, and it is the contract that legitimizes all Government power. To the extent that its various protections against intrusion are set aside, so is the power afforded by that contract. Eventually overstepping the limits of power eliminates that power, as a law of nature. Even total tyranny eventually crumbles to nothing.

  4. Being dedicated to a genre keeps it alive until the masses catch up to the "trend." Kent and Bill are keepin' it LIVE!! Thank you gentlemen..you know your JAZZ.

  5. Hemp has very little THC which is needed to kill cancer cells! Growing cannabis plants for THC inside a hemp field will not work...where is the fear? From not really knowing about Cannabis and Hemp or just not listening to the people teaching you through testimonies and packets of info over the last few years! Wake up Hoosier law makers!

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