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Opinions June 9, 2011

June 9, 2011
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7th Circuit Court of Appeals
Harriett Ellis, et al. v. CCA of Tennessee LLC d/b/a Corrections Corporation of America
10-2768
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge Sarah Evans Barker.
Civil. Affirms summary judgment in favor of CCA of Tennessee on the former jail nurses’ claims of racial discrimination, hostile work environment, and violations of the state whistleblower law. Although the District Court correctly determined there was no genuine issue of material fact related to the plaintiffs’ legal claims, the District Court erred with respect to its claim preclusion ruling. That was a harmless error.

Indiana Supreme Court had posted no opinions at IL deadline.

Indiana Court of Appeals
Brian Smith v. Brendonwood Common, Inc.
49A02-1006-PL-785
Civil plenary. Affirms summary judgment for Brendonwood Common Inc. in Smith’s complaint alleging Brendonwood had violated its bylaws. Smith had no standing to bring his claim.

Josh Gold, Mitch Gold and Andrea Gold v. Cedarview Management Corp.
53A04-1007-PL-451
Civil plenary. Affirms the $48,520.44 plus interest summary judgment for Cedarview Management Corp. The trial court did not err by considering the lease agreement when determining Josh Gold was personally liable as guarantor of the lease for the payment of the settlement agreement; or by including the nonpayment of December 2008 rent in the amount owed for unpaid lease obligations outside the settlement agreement. Cedarview’s re-entry of the premises in February 2009 was not a breach of the lease.

Patrick J. Trainor v. State of Indiana
71A03-1010-CR-561
Criminal. Affirms convictions of and sentence for five counts of Class D felony counterfeiting. The state presented sufficient evidence to support the convictions and under the facts and circumstances of the case, Trainor’s aggregate sentence of seven and one-half years, suspended subject to five years probation, is appropriate.

United States Steel Corp., et al. v. Northern Indiana Public Service Co.
93A02-1006-EX-632
Agency action. The Indiana Utility Regulatory Commission erred when it determined that U.S. Steel’s delivery of electricity to ArcelorMittal made it a public utility for the purposes of I.C. 8-1-2-1(a). It also erred in determining that the steel provider was an “electricity supplier.” Remands with instructions to vacate these portions of the commission’s order. The commission correctly determined that U.S. Steel acted as a public utility regarding its delivery of natural gas to ArcelorMittal pursuant to I.C. 8-1-2-87.5(b) and that its resale of natural gas purchased from NIPSCO violated NIPSCO’s tariff ban on resale.

Ronald Williams v. State of Indiana (NFP)
49A02-1011-CR-1209
Criminal. Affirms murder conviction.

Term. of Parent-Child Rel. of B.M. and S.M.; J.B. v. IDCS (NFP)
28A01-1101-JT-18
Juvenile. Affirms involuntary termination of parental rights.

Asset Acceptance LLC v. Phillip Metz (NFP)
17A05-1011-CC-729
Civil corrections. Reverses order releasing the judgment as paid in full by the debtor and remands for further opinions.

Paternity of J.T.L.; J.D. v. L.L. (NFP)
45A04-1004-JP-287
Juvenile. Affirms denial of father’s motion to vacate, motion for change in magistrate, and motion for contempt and sanctions against the attorney who represented the mother.

Atashia Poe v. State of Indiana (NFP)
35A02-1008-CR-966
Criminal. Affirms sentence for Class A misdemeanor driving while suspended with a prior conviction.

William Lawhorn v. State of Indiana (NFP)
05A04-1009-CR-725
Criminal. Affirms sentence following guilty plea to Class B felony dealing in methamphetamine.

Rodney Simmons v. State of Indiana (NFP)
82A05-1006-CR-353
Criminal. Affirms sentence for Class C felony stalking.

Term. of Parent-Child Rel. of A.C., et al.; S.F. v. I.D.C.S. (NFP)
82A01-1010-JT-578
Juvenile. Affirms involuntary termination of parental rights.

William D. Harmon, Jr. v. State of Indiana (NFP)
79A05-1007-CR-473
Criminal. Vacates convictions of possession of a narcotic drug and for possession of cocaine, Counts IV, VI, VIII, and X. Vacates conviction of Count I, conspiracy to commit dealing in a narcotic drug.  Affirms habitual offender conviction and remands for the trial court to attach the habitual offender enhancement to a single conviction. Affirms admittance of evidence of Harmon’s prior conviction.

Indiana Tax Court had posted no opinions at IL deadline.
 

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  1. He called our nation a nation of cowards because we didn't want to talk about race. That was a cheap shot coming from the top cop. The man who decides who gets the federal government indicts. Wow. Not a gentleman if that is the measure. More importantly, this insult delivered as we all understand, to white people-- without him or anybody needing to explain that is precisely what he meant-- but this is an insult to timid white persons who fear the government and don't want to say anything about race for fear of being accused a racist. With all the legal heat that can come down on somebody if they say something which can be construed by a prosecutor like Mr Holder as racist, is it any wonder white people-- that's who he meant obviously-- is there any surprise that white people don't want to talk about race? And as lawyers we have even less freedom lest our remarks be considered violations of the rules. Mr Holder also demonstrated his bias by publically visiting with the family of the young man who was killed by a police offering in the line of duty, which was a very strong indicator of bias agains the offer who is under investigation, and was a failure to lead properly by letting his investigators do their job without him predetermining the proper outcome. He also has potentially biased the jury pool. All in all this worsens race relations by feeding into the perception shared by whites as well as blacks that justice will not be impartial. I will say this much, I do not blame Obama for all of HOlder's missteps. Obama has done a lot of things to stay above the fray and try and be a leader for all Americans. Maybe he should have reigned Holder in some but Obama's got his hands full with other problelms. Oh did I mention HOlder is a bank crony who will probably get a job in a silkstocking law firm working for millions of bucks a year defending bankers whom he didn't have the integrity or courage to hold to account for their acts of fraud on the United States, other financial institutions, and the people. His tenure will be regarded by history as a failure of leadership at one of the most important jobs in our nation. Finally and most importantly besides him insulting the public and letting off the big financial cheats, he has been at the forefront of over-prosecuting the secrecy laws to punish whistleblowers and chill free speech. What has Holder done to vindicate the rights of privacy of the American public against the illegal snooping of the NSA? He could have charged NSA personnel with violations of law for their warrantless wiretapping which has been done millions of times and instead he did not persecute a single soul. That is a defalcation of historical proportions and it signals to the public that the government DOJ under him was not willing to do a damn thing to protect the public against the rapid growth of the illegal surveillance state. Who else could have done this? Nobody. And for that omission Obama deserves the blame too. Here were are sliding into a police state and Eric Holder made it go all the faster.

  2. JOE CLAYPOOL candidate for Superior Court in Harrison County - Indiana This candidate is misleading voters to think he is a Judge by putting Elect Judge Joe Claypool on his campaign literature. paragraphs 2 and 9 below clearly indicate this injustice to voting public to gain employment. What can we do? Indiana Code - Section 35-43-5-3: Deception (a) A person who: (1) being an officer, manager, or other person participating in the direction of a credit institution, knowingly or intentionally receives or permits the receipt of a deposit or other investment, knowing that the institution is insolvent; (2) knowingly or intentionally makes a false or misleading written statement with intent to obtain property, employment, or an educational opportunity; (3) misapplies entrusted property, property of a governmental entity, or property of a credit institution in a manner that the person knows is unlawful or that the person knows involves substantial risk of loss or detriment to either the owner of the property or to a person for whose benefit the property was entrusted; (4) knowingly or intentionally, in the regular course of business, either: (A) uses or possesses for use a false weight or measure or other device for falsely determining or recording the quality or quantity of any commodity; or (B) sells, offers, or displays for sale or delivers less than the represented quality or quantity of any commodity; (5) with intent to defraud another person furnishing electricity, gas, water, telecommunication, or any other utility service, avoids a lawful charge for that service by scheme or device or by tampering with facilities or equipment of the person furnishing the service; (6) with intent to defraud, misrepresents the identity of the person or another person or the identity or quality of property; (7) with intent to defraud an owner of a coin machine, deposits a slug in that machine; (8) with intent to enable the person or another person to deposit a slug in a coin machine, makes, possesses, or disposes of a slug; (9) disseminates to the public an advertisement that the person knows is false, misleading, or deceptive, with intent to promote the purchase or sale of property or the acceptance of employment;

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  4. I grew up on a farm and live in the county and it's interesting that the big industrial farmers like Jeff Shoaf don't live next to their industrial operations...

  5. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

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