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.
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
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
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.
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
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
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
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
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
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)
Criminal. Affirms order Preston serve seven years of previously suspended sentence in the Department of Correction.

Jonathan R. Stephens v. State of Indiana (NFP)
Criminal. Affirms sentence following guilty plea to Class D felony theft.

Kevin Ferguson v. State of Indiana (NFP)
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)
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)
Juvenile. Affirms order awarding custody to father. Father is not entitled to appellate attorney fees.

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

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

Rochelle M. Gibler v. Discover Bank (NFP)
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)
Agency appeal. Affirms denial of unemployment benefits.

Malinda Diaz v. State of Indiana (NFP)
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)
Civil. Affirms order granting a preliminary injunction to the Hurfords.

William Singleton v. State of Indiana (NFP)
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. I have an open CHINS case I failed a urine screen I have since got clean completed IOP classes now in after care passed home inspection my x sister in law has my children I still don't even have unsupervised when I have been clean for over 4 months my x sister wants to keep the lids for good n has my case working with her I just discovered n have proof that at one of my hearing dcs case worker stated in court to the judge that a screen was dirty which caused me not to have unsupervised this was at the beginning two weeks after my initial screen I thought the weed could have still been in my system was upset because they were suppose to check levels n see if it was going down since this was only a few weeks after initial instead they said dirty I recently requested all of my screens from redwood because I take prescriptions that will show up n I was having my doctor look at levels to verify that matched what I was prescripted because dcs case worker accused me of abuseing when I got my screens I found out that screen I took that dcs case worker stated in court to judge that caused me to not get granted unsupervised was actually negative what can I do about this this is a serious issue saying a parent failed a screen in court to judge when they didn't please advise

  2. I have a degree at law, recent MS in regulatory studies. Licensed in KS, admitted b4 S& 7th circuit, but not to Indiana bar due to political correctness. Blacklisted, nearly unemployable due to hostile state action. Big Idea: Headwinds can overcome, esp for those not within the contours of the bell curve, the Lego Movie happiness set forth above. That said, even without the blacklisting for holding ideas unacceptable to the Glorious State, I think the idea presented above that a law degree open many vistas other than being a galley slave to elitist lawyers is pretty much laughable. (Did the law professors of Indiana pay for this to be published?)

  3. Paul Hartman of Burbank, Oh who is helping Sister Fuller with this Con Artist Kevin Bart McCarthy scares Sister Joseph Therese, Patricia Ann Fuller very much that McCarthy will try and hurt Patricia Ann Fuller and Paul Hartman of Burbank, Oh or any member of his family. Sister is very, very scared, (YES, I AM) This McCarthy guy is a real, real CON MAN and crook. I try to totall flatter Kevin Bart McCARTHY to keep him from hurting my best friends in this world which are Carolyn Rose and Paul Hartman. I Live in total fear of this man Kevin Bart McCarthy and try to praise him as a good man to keep us ALL from his bad deeds. This man could easy have some one cause us a very bad disability. You have to PRAISAE in order TO PROTECT yourself. He lies and makes up stories about people and then tries to steal if THEY OWN THRU THE COURTS A SPECIAL DEVOTION TO PROTECT, EX> Our Lady of America DEVOTION. EVERYONE who reads this, PLEASE BE CAREFUL of Kevin Bart McCarthy of Indianapolis, IN My Phone No. IS 419-435-3838.

  4. Joe, you might want to do some reading on the fate of Hoosier whistleblowers before you get your expectations raised up.

  5. I had a hospital and dcs caseworker falsify reports that my child was born with drugs in her system. I filed a complaint with the Indiana department of health....and they found that the hospital falsified drug screens in their investigation. Then I filed a complaint with human health services in Washington DC...dcs drug Testing is unregulated and is indicating false positives...they are currently being investigated by human health services. Then I located an attorney and signed contracts one month ago to sue dcs and Anderson community hospital. Once the suit is filed I am taking out a loan against the suit and paying a law firm to file a writ of mandamus challenging the courts jurisdiction to invoke chins case against me. I also forwarded evidence to a u.s. senator who contacted hhs to push an investigation faster. Once the lawsuit is filed local news stations will be running coverage on the situation. Easy day....people will be losing their jobs soon...and judge pancol...who has attempted to cover up what has happened will also be in trouble. The drug testing is a kids for cash and federal funding situation.