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Opinions March 20, 2012

March 20, 2012
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7th Circuit Court of Appeals
Estate of Nicholas D. Rice, deceased, by Rick D. Rice and Diane J. Waldrop, co-personal representatives v. Correctional Medical Services, et al.
http://media.ibj.com/Lawyer/websites/opinions/index.php?pdf=2012/march/GK0PUU3D.pdf
09-2804, 10-2389
U.S. District Court, Northern District of Indiana, South Bend Division, Judges Robert L. Miller Jr. and Rudy Lozano.
Civil. In No. 09-2804, affirms in part and reverse in part the District Court’s entry of summary judgment in favor of the defendants. A material dispute of fact precludes summary judgment on one of the estate’s Section 1983 claims. In No. 10-2389, reverses the District Court’s decision to dismiss the state claims on the basis of collateral estoppel. Remands both cases for further proceedings consistent with this opinion.

Indiana Supreme Court
Rebecca D. Kays v. State of Indiana
42S05-1107-CR-441
Criminal. Remands to determine Kays’ ability to pay restitution and a determination of her manner of payment. Finds nothing in 42 U.S.C. Section 407(a) to prohibit a trial court from considering a defendant’s Social Security income when determining the “amount the person can or will be able to pay” in restitution pursuant to Indiana Code 35-38-2-2.3(a)(5).

Henry L. Howard, et al. v. United States
94S00-1106-CQ-333
Certified question. Under Indiana law, railbanking and interim trail use pursuant to 16 U.S.C. Section 1274(d) are not uses within the scope of the easements, and railbanking with interim trail use does not constitute a permissible shifting public use.

Harold J. Klinker v. First Merchants Bank, N.A.
01S04-1107-PL-438
Civil plenary. Reverses judgment on fraud and treble-damages claims because there are genuine issues of material fact as to whether Klinker acted with the requisite criminal intent. Remands for further proceedings.

Hannah Lakes v. Grange Mutual Casualty Company
89S05-1109-CT-531
Civil tort. Holds that the tortfeasor’s vehicle was underinsured under Indiana Code 27-7-5-4(b) because the amount actually paid to Hannah Lakes was less than the per-person limit of liability of the under-insurance endorsement. Remands for further proceedings.

Jerrell D. White v. State of Indiana
15S01-1109-CR-545
Criminal. Holds, under the circumstances of this case, that the defendant did not preserve the issue of whether the trial court properly allowed the habitual offender filing. Also holds that the authenticated and certified evidence was sufficient to uphold the jury’s determination that the defendant had two unrelated adult felony convictions. Justice Sullivan dissents, believing the Court of Appeals opinion to be correct.

Indiana Court of Appeals
Auto-Owners Insurance Company v. Cathy Benko and Gerald Ewing, as Executors of the Estate of Laverna Ewing, Deceased
75A04-1108-CT-440
Civil tort. Affirms denial of Auto-Owners’ motion to strike and summary judgment for Benko and Ewing in their underinsured motorist claim. Concludes that the plain language of the provision would lead an ordinary policyholder to believe that they were required to bring a bodily injury claim against the alleged tortfeasor within the applicable statute of limitations, which occurred in this case. Additionally, if the insurance company intended a different interpretation, it should have stated so in plain English so that their policyholders understand what is necessary to protect their interests and collect their benefits under the policy.

Luke Keys Carson v. State of Indiana
29A04-1106-CR-278
Criminal. Affirms convictions as guilty but mentally ill of two counts of battery by means of a deadly weapon, burglary, and resisting law enforcement. The evidence of Carson’s demeanor during and after the crime supports the determination that he was able to appreciate the wrongfulness of actions at the time of the crimes and therefore was guilty but mentally ill. There is also sufficient evidence to support the burglary conviction.

Curtis A. Bethea v. State of Indiana
18A05-1107-PC-416
Post conviction. Affirms denial of post-conviction relief. Based on Farmer v. State, 772 N.E.2d 1025 (Ind. Ct. App. 2002), and Roney v. State, 872 N.E.2d 192 (Ind. Ct. App. 2007), appellate counsel could have challenged the trial court’s use of one of the victim’s injuries as an aggravating factor because that was an element of the burglary charge that was dismissed pursuant to Bethea’s plea agreement. Concludes that Farmer and Roney misapplied the precedents on which they relied, and declines to follow those cases. Bethea’s remaining arguments concern minor mischaracterizations in the trial court’s findings which are not significant enough in light of the valid findings to warrant a downward revision. Judge May concurs in result; Judge Brown dissents.

Mitchell Preston v. State of Indiana (NFP)
48A04-1108-CR-403
Criminal. Affirms order Preston serve seven years of previously suspended sentence in the Department of Correction.

Jonathan R. Stephens v. State of Indiana (NFP)
85A05-1108-CR-446
Criminal. Affirms sentence following guilty plea to Class D felony theft.

Kevin Ferguson v. State of Indiana (NFP)
53A01-1107-CR-292
Criminal. Affirms conviction following guilty plea to Class B felony dealing in methamphetamine after trial court denied request to withdraw plea.  

James N. Hamilton v. State of Indiana (NFP)
89A04-1103-CR-134
Criminal. Affirms two convictions of Class D felony receiving stolen property.  

B.M. v. M.M. and M.R.M., b/n/f M.M. (NFP)
12A02-1107-JP-722
Juvenile. Affirms order awarding custody to father. Father is not entitled to appellate attorney fees.

Clarence A. Martin, Jr. v. State of Indiana (NFP)
82A01-1008-PC-497
Post conviction. Dismisses appeal of denial of petition for post-conviction relief.

Thomas Eaton, et al. v. City of Gary, et al. (NFP)
45A04-1106-MI-312
Miscellaneous. Affirms order denying Eaton and other appellants’ motion to correct error.

Rochelle M. Gibler v. Discover Bank (NFP)
71A05-1109-CC-500
Civil collection. Affirms summary judgment in favor of Discover Bank upon its breach of contract claim.

R.S. v. Review Board of the Indiana Dept. of Workforce Development and M.B. (NFP)
93A02-1107-EX-656
Agency appeal. Affirms denial of unemployment benefits.

Malinda Diaz v. State of Indiana (NFP)
49A02-1109-CR-821
Criminal. Affirms conviction of Class A misdemeanor domestic battery.

Earl R. England and Mary L. England v. Rob E. Hurford and Jennifer M. Hurford (NFP)
50A04-1106-PL-297
Civil. Affirms order granting a preliminary injunction to the Hurfords.

William Singleton v. State of Indiana (NFP)
75A05-1106-CR-346
Criminal. Affirms conviction of Class A felony attempted voluntary manslaughter and remands with instructions to vacate the Class B felony aggravated battery conviction and sentence.

Indiana Tax Court had posted no opinions at IL deadline.
 

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  1. Good riddance to this dangerous activist judge

  2. What is the one thing the Hoosier legal status quo hates more than a whistleblower? A lawyer whistleblower taking on the system man to man. That must never be rewarded, must always, always, always be punished, lest the whole rotten tree be felled.

  3. I want to post this to keep this tread alive and hope more of David's former clients might come forward. In my case, this coward of a man represented me from June 2014 for a couple of months before I fired him. I knew something was wrong when he blatantly lied about what he had advised me in my contentious and unfortunate divorce trial. His impact on the proceedings cast a very long shadow and continues to impact me after a lengthy 19 month divorce. I would join a class action suit.

  4. The dispute in LB Indiana regarding lake front property rights is typical of most beach communities along our Great Lakes. Simply put, communication to non owners when visiting the lakefront would be beneficial. The Great Lakes are designated navigational waters (including shorelines). The high-water mark signifies the area one is able to navigate. This means you can walk, run, skip, etc. along the shores. You can't however loiter, camp, sunbath in front of someones property. Informational signs may be helpful to owners and visitors. Our Great Lakes are a treasure that should be enjoyed by all. PS We should all be concerned that the Long Beach, Indiana community is on septic systems.

  5. Dear Fan, let me help you correct the title to your post. "ACLU is [Left] most of the time" will render it accurate. Just google it if you doubt that I am, err, "right" about this: "By the mid-1930s, Roger Nash Baldwin had carved out a well-established reputation as America’s foremost civil libertarian. He was, at the same time, one of the nation’s leading figures in left-of-center circles. Founder and long time director of the American Civil Liberties Union, Baldwin was a firm Popular Fronter who believed that forces on the left side of the political spectrum should unite to ward off the threat posed by right-wing aggressors and to advance progressive causes. Baldwin’s expansive civil liberties perspective, coupled with his determined belief in the need for sweeping socioeconomic change, sometimes resulted in contradictory and controversial pronouncements. That made him something of a lightning rod for those who painted the ACLU with a red brush." http://www.harvardsquarelibrary.org/biographies/roger-baldwin-2/ "[George Soros underwrites the ACLU' which It supports open borders, has rushed to the defense of suspected terrorists and their abettors, and appointed former New Left terrorist Bernardine Dohrn to its Advisory Board." http://www.discoverthenetworks.org/viewSubCategory.asp?id=1237 "The creation of non-profit law firms ushered in an era of progressive public interest firms modeled after already established like the National Association for the Advancement of Colored People ("NAACP") and the American Civil Liberties Union ("ACLU") to advance progressive causes from the environmental protection to consumer advocacy." https://en.wikipedia.org/wiki/Cause_lawyering

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