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Opinions June 21, 2011

June 21, 2011
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7th Circuit Court of Appeals
United States of American v. Donella Locke
10-1351.
Criminal. Affirms convictions on five counts of wire fraud. Vacates Donella Locke’s 71-month sentence and restitution order and remands for resentencing proceedings, holding that the length of the sentence and amount of restitution were based in part on conduct not necessarily encompassed in the charges of conviction. Also holds that the court erred in ordering Locke to pay restitution to victims not clearly harmed by the conduct in Locke’s counts of conviction.

Indiana Supreme Court
Misty D. Davis v. Animal Control - City of Evansville, et al.
82S01-1102-CV-77
Civil. Affirms trial court’s finding that the city defendants were entitled to “law enforcement immunity” under the Indiana Tort Claims Act, and cannot be held liable for a dog attacking Misty Davis’ son.

Michael Ashby and Randy O'Brien v. The Bar Plan Mutual Insurance Co., and C. Bruce Davidson, Jr.
49S04-1011-CV-635
Civil. Reverses summary judgment in favor of an insurance company for claims brought against the company after the insured – C. Bruce Davidson Jr. – abandoned his law practice, was disbarred, and did not report the claims to the company.

Gibraltar Financial Corp. v. Prestige Equipment Corp., National Machinery Exchange, Inc., et al.
20S03-1010-CV-618
Civil. Reverses trial court’s summary judgment on behalf of the defendants, stating that a genuine issue of material fact exists regarding whether the equipment in question was leased. The court held that the language of an agreement between the now-defunct Vitco company and General Finance could be interpreted to be either a lease or a sale subject to security interest. Remands to court for proceedings consistent with opinion.

Indiana Court of Appeals
Victor J. DiMaggio, III v. Elias Rosario, et al.
64A03-1009-PL-500
Civil plenary. Affirms court’s order dismissing Victor DiMaggio’s complaint for usurpation of a corporate opportunity against Liberty Lake Estates, holding DiMaggio failed to state a claim upon which relief can be granted and failed to prove that Elias Rosario, et al., knowingly or intentionally usurped corporate opportunity.

Darrell Farmer v. State of Indiana (NFP)
49A02-1007-CR-772
Criminal. Affirms trial court’s denial of motion for a mistrial, holding that Darrell Farmer failed to establish bias or prejudice.

Donnett Phillips v. State of Indiana (NFP)
49A02-1011-CR-1244
Criminal. Affirms convictions of battery and public intoxication, both Class B misdemeanors.

Andre White v. State of Indiana (NFP)
49A04-1009-PC-616
Post-conviction relief petition. Affirms court’s denial of post-conviction relief petition.

Raymond Cain v. State of Indiana (NFP)
22A01-1011-CR-605
Criminal. Affirms six-year sentence with two years suspended to probation for Class C felony child exploitation.

Latoya Duncan v. State of Indiana (NFP)
22A01-1007-CR-365
Criminal. Reverses sentence of eight years with two years suspended to probation, following guilty plea to Class B felony dealing in cocaine, holding that Latoya Duncan’s lack of criminal background and character make her a good candidate for probation. Remands with instructions to vacate sentence and re-sentence consistent with appeals court’s opinion.

Demarcus Verse v. State of Indiana (NFP)
71A03-1012-CR-628
Criminal. Affirms convictions of Class D felony strangulation and related charges.

Term. of Parent-Child Rel. of D.M.; E.M. v. I.D.C.S. (NFP)
46A03-1012-JT-676
Juvenile. Affirms involuntary termination of father’s parental rights.

James C. Ritenour, Jr. v. State of Indiana (NFP)
75A03-1009-CR-512
Criminal. Affirms conviction of and sentence for Class C felony attempted battery.

Eric M. Schuler v. State of Indiana (NFP)
48A02-1009-CR-1063
Criminal. Affirms court’s order revoking probation and imposing four years of previously suspended sentence.

Steven Connors v. State of Indiana (NFP)
71A05-1011-CR-776
Criminal. Affirms conviction of Class B felony arson.

Tommie Rivers v. State of Indiana (NFP)
49A05-1011-CR-763
Criminal. Affirms convictions of Class A misdemeanor possession of marijuana, and Class A misdemeanor driving while suspended.

Phillip D. Laster v. State of Indiana (NFP)
02A05-1011-CR-727
Criminal. Affirms conviction of Class D felony domestic battery and remands with instructions to vacate “consecutive” sentence for habitual offender adjudication and to attach the enhanced sentence to the domestic battery sentence.

Indiana Tax Court had posted no opinions as of IL deadline.
 

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  2. The practitioners and judges who hail E-filing as the Saviour of the West need to contain their respective excitements. E-filing is federal court requires the practitioner to cram his motion practice into pigeonholes created by IT people. Compound motions or those seeking alternative relief are effectively barred, unless the practitioner wants to receive a tart note from some functionary admonishing about the "problem". E-filing is just another method by which courts and judges transfer their burden to practitioners, who are the really the only powerless components of the system. Of COURSE it is easier for the court to require all of its imput to conform to certain formats, but this imposition does NOT improve the quality of the practice of law and does NOT improve the ability of the practitioner to advocate for his client or to fashion pleadings that exactly conform to his client's best interests. And we should be very wary of the disingenuous pablum about the costs. The courts will find a way to stick it to the practitioner. Lake County is a VERY good example of this rapaciousness. Any one who does not believe this is invited to review the various special fees that system imposes upon practitioners- as practitioners- and upon each case ON TOP of the court costs normal in every case manually filed. Jurisprudence according to Aldous Huxley.

  3. Any attorneys who practice in federal court should be able to say the same as I can ... efiling is great. I have been doing it in fed court since it started way back. Pacer has its drawbacks, but the ability to hit an e-docket and pull up anything and everything onscreen is a huge plus for a litigator, eps the sole practitioner, who lacks a filing clerk and the paralegal support of large firms. Were I an Indiana attorney I would welcome this great step forward.

  4. Can we get full disclosure on lobbyist's payments to legislatures such as Mr Buck? AS long as there are idiots that are disrespectful of neighbors and intent on shooting fireworks every night, some kind of regulations are needed.

  5. I am the mother of the child in this case. My silence on the matter was due to the fact that I filed, both in Illinois and Indiana, child support cases. I even filed supporting documentation with the Indiana family law court. Not sure whether this information was provided to the court of appeals or not. Wish the case was done before moving to Indiana, because no matter what, there is NO WAY the state of Illinois would have allowed an appeal on a child support case!

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