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Opinions July 27, 2010

July 27, 2010
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7th Circuit Court of Appeals
Marion County Coroner’s Office v. Equal Employment Opportunity Commission and John Linehan
09-3595
Petition for review of an order of the EEOC. Upholds the EEOC determination that Coroner Ackles’ stated reason for taking action against Linehan was pretextual and that the EEOC had jurisdiction over Linehan’s retaliation claim. Reduces the compensatory damage award from $200,000 to a suggested $20,000. If the respondents do not consent to the remittitur, there will be a new hearing on the issue.

Prime Eagle Group Ltd., as assignee of the claims of Nakornthai Strip Mill Public Co. Ltd. v. Steel Dynamics Inc.
09-1663
U.S. District Court, Northern District of Indiana, Fort Wayne Division, Judge James T. Moody.
Civil. Affirms judgment for Steel Dynamics in Prime Eagle’s suit that Steel Dynamics must pay damages in tort for withdrawing from a steel mill venture in Asia. Nakornthai’s injury began no later than July 1999 and the company had knowledge of the injury then, so its suit is beyond the statute of limitations.

Indiana Supreme Court had posted no opinions at IL deadline.

Indiana Court of Appeals

Steven Spangler and Heidi Brown v. Barbara Bechtel, Expectations Women's Health & Child Bearing Center, et al.
49A05-0908-CV-482
Civil. Reverses summary judgment in favor of the defendants in Spangler and Brown’s suit for wrongful death and emotional distress after their child was stillborn. The parents have a valid claim for negligent infliction of emotional distress based on Brown’s direct involvement in the stillbirth. Holds that a mother who suffers a stillbirth due to medical malpractice qualifies as an injured patient and satisfies the actual victim requirement under the Medical Malpractice Act regardless of whether the malpractice resulted in injuries to the mother, the fetus, or both, and the parents may assert a claim for negligent infliction of emotional distress under Shuamber’s modified impact rule.

David A. Calvert v. State of Indiana
40A05-0911-CR-659
Criminal. Reverses conviction of Class B felony attempted robbery with a deadly weapon because the state failed to prove a substantial step. Calvert’s conviction of possession of a sawed-off shotgun as a Class D felony violates double jeopardy. Affirms convictions of Class B felony possession of a firearm as a serious violent felon. Affirms sentence and remands with instructions. Judge Kirsch dissents in part.

E.W. Revocable Trust
29A02-0910-CV-1004
Civil. Affirms order that the trustee pay the beneficiaries’ attorney fees, the reduction of the requested trustee fees, and the reduction of the amount of trustee’s attorney fees to be borne by the trust. The trustee breached duties owed to the objecting beneficiaries. Reverses order that the trustee bear the remaining portion of his attorney fees personally.

Cornelius Tyrone Lacey, Sr. v. State of Indiana
02A05-0910-CR-562
Criminal. Reverses denial of motion to suppress evidence obtained during the execution of a search warrant. There was probable cause for the issuance of the search warrant but the unilateral decision to dispense with the knock-and-announce rule was unreasonable under the Indiana Constitution. Judge Barnes concurs in result.

Damion Wilkins v. State of Indiana
02A03-0910-CR-451
Criminal. Reverses denial of motion to suppress evidence obtained during the execution of a search warrant. There was probable cause for the issuance of the search warrant but the unilateral decision to dispense with the knock-and-announce rule was unreasonable under the Indiana Constitution. Judge Barnes concurs in result.

Cedric Lewis v. State of Indiana
49A02-0908-CR-736
Criminal. Reverses conviction of Class B felony possession of a firearm by a serious violent felon. The state failed to satisfy its burden of showing that the warrantless search of the vehicle and the seizure of the gun were satisfied. Judge Kirsch concurs in result; Judge Mathias dissents.

Bradford Drake v. State of Indiana (NFP)
55A01-0912-CR-577
Criminal. Affirms sentence for two convictions of attempted murder as Class A felonies.

Term. of Parent-Child Rel. of M.D.; M.C. v. I.D.C.S. (NFP)
34A02-1001-JT-156
Juvenile. Affirms termination of parental rights.

Dionte-Daymone Jones v. State of Indiana (NFP)
45A05-1001-CR-4
Criminal. Affirms sentence following guilty plea to Class D felony auto theft.

Daniel Brownlee v. State of Indiana (NFP)
49A02-0912-CR-1259
Criminal. Affirms conviction of Class C felony burglary and Class D felony attempted theft.

James Eiteljorg, et al. v. Ralph E. Lean (NFP)
49A05-0912-CV-679
Civil. Reverses denial of Eiteljorg and Bharti’s motion for summary judgment in an action brought by Lean seeking contribution from them for violations of the Indiana Securities Law. Remands with instructions.

Daniel J. Emery v. State of Indiana (NFP)
52A04-0910-PC-583
Post conviction. Affirms denial of petition for post-conviction relief.

Associated Builders & Contractors Indiana Chapter, Inc., et al. v. Lori A. Torres (NFP)
49A02-0910-CV-995
Civil. Grants rehearing but affirms original opinion in all respects regarding the dismissal of the builders’ complaint for lack of standing.

Robert Emerson v. State of Indiana (NFP)
71A03-1001-CR-26
Criminal. Affirms conviction of Class C felony battery.

Indiana Tax Court had posted no opinions at IL deadline.
 

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  1. Have been seeing this wonderful physician for a few years and was one of his patients who told him about what we were being told at CVS. Multiple ones. This was a witch hunt and they shold be ashamed of how patients were treated. Most of all, CVS should be ashamed for what they put this physician through. So thankful he fought back. His office is no "pill mill'. He does drug testing multiple times a year and sees patients a minimum of four times a year.

  2. Brian W, I fear I have not been sufficiently entertaining to bring you back. Here is a real laugh track that just might do it. When one is grabbed by the scruff of his worldview and made to choose between his Confession and his profession ... it is a not a hard choice, given the Confession affects eternity. But then comes the hardship in this world. Imagine how often I hear taunts like yours ... "what, you could not even pass character and fitness after they let you sit and pass their bar exam ... dude, there must really be something wrong with you!" Even one of the Bishop's foremost courtiers said that, when explaining why the RCC refused to stand with me. You want entertaining? How about watching your personal economy crash while you have a wife and five kids to clothe and feed. And you can't because you cannot work, because those demanding you cast off your Confession to be allowed into "their" profession have all the control. And you know that they are wrong, dead wrong, and that even the professional code itself allows your Faithful stand, to wit: "A lawyer may refuse to comply with an obligation imposed by law upon a good faith belief that no valid obligation exists. The provisions of Rule 1.2(d) concerning a good faith challenge to the validity, scope, meaning or application of the law apply to challenges of legal regulation of the practice of law." YET YOU ARE A NONPERSON before the BLE, and will not be heard on your rights or their duties to the law -- you are under tyranny, not law. And so they win in this world, you lose, and you lose even your belief in the rule of law, and demoralization joins poverty, and very troubling thoughts impeaching self worth rush in to fill the void where your career once lived. Thoughts you did not think possible. You find yourself a failure ... in your profession, in your support of your family, in the mirror. And there is little to keep hope alive, because tyranny rules so firmly and none, not the church, not the NGO's, none truly give a damn. Not even a new court, who pay such lip service to justice and ancient role models. You want entertainment? Well if you are on the side of the courtiers running the system that has crushed me, as I suspect you are, then Orwell must be a real riot: "There will be no curiosity, no enjoyment of the process of life. All competing pleasures will be destroyed. But always — do not forget this, Winston — always there will be the intoxication of power, constantly increasing and constantly growing subtler. Always, at every moment, there will be the thrill of victory, the sensation of trampling on an enemy who is helpless. If you want a picture of the future, imagine a boot stamping on a human face — forever." I never thought they would win, I always thought that at the end of the day the rule of law would prevail. Yes, the rule of man's law. Instead power prevailed, so many rules broken by the system to break me. It took years, but, finally, the end that Dr Bowman predicted is upon me, the end that she advised the BLE to take to break me. Ironically, that is the one thing in her far left of center report that the BLE (after stamping, in red ink, on Jan 22) is uninterested in, as that the BLE and ADA office that used the federal statute as a sword now refuses to even dialogue on her dire prediction as to my fate. "C'est la vie" Entertaining enough for you, status quo defender?

  3. Low energy. Next!

  4. Had William Pryor made such provocative statements as a candidate for the Indiana bar he could have been blackballed as I have documented elsewhere on this ezine. That would have solved this huuuge problem for the Left and abortion industry the good old boy (and even girl) Indiana way. Note that Diane Sykes could have made a huuge difference, but she chose to look away like most all jurists who should certainly recognize a blatantly unconstitutional system when filed on their docket. See footnotes 1 & 2 here: http://caselaw.findlaw.com/us-7th-circuit/1592921.html Sykes and Kanne could have applied a well established exception to Rooker Feldman, but instead seemingly decided that was not available to conservative whistleblowers, it would seem. Just a loss and two nice footnotes to numb the pain. A few short years later Sykes ruled the very opposite on the RF question, just as she had ruled the very opposite on RF a few short years before. Indy and the abortion industry wanted me on the ground ... they got it. Thank God Alabama is not so corrupted! MAGA!!!

  5. OK, take notice. Those wondering just how corrupt the Indiana system is can see the picture in this post. Attorney Donald James did not criticize any judges, he merely, it would seem, caused some clients to file against him and then ignored his own defense. James thus disrespected the system via ignoring all and was also ordered to reimburse the commission $525.88 for the costs of prosecuting the first case against him. Yes, nearly $526 for all the costs, the state having proved it all. Ouch, right? Now consider whistleblower and constitutionalist and citizen journalist Paul Ogden who criticized a judge, defended himself in such a professional fashion as to have half the case against him thrown out by the ISC and was then handed a career ending $10,000 bill as "half the costs" of the state crucifying him. http://www.theindianalawyer.com/ogden-quitting-law-citing-high-disciplinary-fine/PARAMS/article/35323 THE TAKEAWAY MESSAGE for any who have ears to hear ... resist Star Chamber and pay with your career ... welcome to the Indiana system of (cough) justice.

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