Archive for the ‘Appeal’ Category

Defendant Refuses to Communicate With His Attorneys; Exploitation Case Still Set for Trial

October 31, 2013

Defendant Richard Edwards’ actions with regard to refusing to communicate with his attorneys are detrimental to no one but himself, he was told by a judge Tuesday.

Mr. Edwards, 44, is charged with felony exploitation of the elderly. The defendant allegedly took $110,000 from the life savings of a 100-year-old retired teacher.

Circuit Judge Dan Kellogg told the defendant he’d only hurt himself by not talking with the two attorneys.
The judge also heard a motion Tuesday for a continuance filed by Christopher Bowers and Robert Young. The two attorneys have filed repeated motions to withdraw from the case, and Mr. Kellogg has denied them. Mr. Bowers and Mr. Young notified the court Tuesday that prosecutor Ron Holliday had provided additional discovery on Oct. 16.
That information, from testimony given by Donnie Embrey, 46, was the opposite of what their client had told them. Mr. Embrey entered a guilty plea in September to taking about $242,000 from the victim. Both attorneys wanted more time to take depositions from Mr. Embrey and other possible witnesses.
Mr. Bowers notified the court that he’d appealed Mr. Kellogg’s previous ruling, refusing to allow the attorneys to withdraw.
“I doubt the Court of Appeals will address this issue,” Mr. Holliday said.

Full Article and Source:
Exploitation Case Still Set for Trial

Minn. high court to decide end-of-life case

October 22, 2013

MINNEAPOLIS (AP) — The Minnesota Supreme Court will decide whether guardians have the legal authority to take their wards off life support.
The high court agreed Wednesday to review the case of Jeffers Tschumy. That means the court will for the first time in nearly 30 years revisit an end-of-life issue that could affect many of the more than 12,000 Minnesotans under guardianship who don’t have health care directives, the Star Tribune reported Saturday ( ).
The key issue is whether guardians must receive a judge’s approval to remove life support, or whether guardians already have that power.
Tschumy was a mentally disabled man with no family and no health care directive who had been under guardianship since 2008. He choked on food last year and was declared severely brain-damaged with little hope of recovery.
The Allina Health System requested that a judge allow him to be removed from life support, either by clarifying that his guardian had the right to make the decision, or by issuing an order allowing his removal from life support. District Judge Jay Quam denied the guardian’s request for sole power to make that decision, but authorized the termination of Tschumy’s life support. He died.
Quam wrote that guardians have a strong case to make end-of-life decisions under a state law that grants them the power to allow or withhold medical care, but he said the law does not specifically allow them to end life support. Until the Legislature decides to address the issue, he wrote, only judges or legally authorized representatives can order life support removed.
Last summer, the Minnesota Court of Appeals reversed Quam’s ruling, reasoning that the final authority lies with guardians and that end-of-life decisions shouldn’t be dictated by the court. The appeals court relied on a 1984 Supreme Court ruling.
The state attorney general’s office, which weighed in with briefs supporting a mandatory judge’s sign-off, is expected to do so again before the Supreme Court.

Full Article and Source:
Minn. high court to decide end-of-life case

Ohio appeals court again sides with hospital seeking to send Amish girl back to chemotherapy

October 9, 2013

An appeals court has sided again with an Ohio hospital that wants to force a 10-year-old Amish girl to resume chemotherapy after her parents decided to stop the treatments.

The court ruled that an attorney who’s also a registered nurse should be granted limited guardianship over the girl, Sarah Hershberger, and the power to make medical decisions for her.

Doctors at Akron Children’s Hospital believe Sarah’s leukemia is treatable but says she will die without chemotherapy. The hospital went to court after the family decided to stop chemotherapy and treat Sarah with natural medicines, such as herbs and vitamins.

The appeals court ruling, issued last week, overturns a judge’s decision that said that keeping the parents from making medical decisions for their daughter would take away their rights.

“While we respect the wishes of the parents and believe them to be honest and sincere, we are unwilling to adhere to the wishes of the parents,” the appeals court judges wrote.

The beliefs and convictions of the parents can’t outweigh the rights of the state to protect the child, the court said. It also ordered that the guardian should be appointed right away.

Full Article and Source:
Ohio appeals court again sides with hospital seeking to send Amish girl back to chemotherapy

See Also:
Judge Again Blocks Ohio Hospital’s Attempt to Force Amish Girll to Resume Treatments

Judge sides with hospital that forced chemotherapy for Amish girl with leukemia

Ohio hospital wants to force Amish girl’s cancer treatment after parents stop chemotherapy

Indicted Texas Judge Loses Bid To Nix Removal Suit

September 13, 2013

Law360, Houston (September 12, 2013, 3:15 PM ET) — A Texas appeals court declined Thursday to throw out a civil removal suit aimed at a state judge indicted on abuse of office charges, clearing the way for proceedings to continue in the case.

The First District Court of Appeals denied Galveston County Court at Law Judge Christopher Dupuy’s petition for mandamus, in which he said that the trial court hearing the removal suit should have dismissed the case.

Full Article and Source:
Indicted Texas Judge Loses Bid To Nix Removal Suit

Judge Again Blocks Ohio Hospital’s Attempt to Force Amish Girll to Resume Treatments

September 11, 2013

A judge has again blocked an Ohio hospital from forcing a 10-year-old Amish girl to resume chemotherapy after her parents decided to stop the treatments.

The order siding with the parents comes just a week after an appeals court sent the case back to the judge and told him to give more consideration to the request by Akron Children’s Hospital.

The hospital wants a registered nurse to take over limited guardianship of Sarah Hershberger and decide whether she should continue treatments for leukemia. The hospital believes Sarah’s leukemia is treatable and says she will die without chemotherapy.

Andy Hershberger, the girl’s father, said the family agreed to begin two years of treatments for Sarah last spring but stopped a second round of chemotherapy in June because it was making her extremely sick.

Judge John Lohn, in Medina County, said in his ruling Tuesday that not allowing the parents to make medical decisions for their daughter would take away their rights. He also said there is no guarantee that chemotherapy would be successful.
“They are good parents,” he said. “They understand completely the grave situation their daughter is in and the consequences of their choice to refuse chemotherapy for Sarah at this time.”

Lohn said also that allowing for a guardian would go against the girl’s wishes.

Full Article and Source:
Judge again blocks Ohio hospital’s attempt to force Amish girl to resume cancer treatments

See Also:
Judge sides with hospital that forced chemotherapy for Amish girl with leukemia

Ohio hospital wants to force Amish girl’s cancer treatment after parents stop chemotherapy

DC Appellate Court Strikes 1892 Case Law on Contracts with Mentally Ill

May 8, 2013

Replacing precedent dating back to 1892, the District of Columbia Court of Appeals ruled [5/2/13] that contracts entered into with mentally incapacitated individuals will no longer be considered automatically void.

Under the new standard, those contracts will be voidable, as opposed to inherently void. According to the ruling, a contract will be binding unless the incapacitated person or someone approved to act on his or her behalf takes steps to cancel it. If an incapacitated person or the representative does want to cancel a contract, they can only do so if it would be fair to the parties involved.

Judge Anna Blackburne-Rigsby, writing for the court, said the new standard, which is used in the majority of jurisdictions in the United States, “better comports with modern contract law and modern understandings of mental illness.”

Full Article and Source:
Court Strikes 1892 Case Law on Contracts with Mentally Ill

California Probate Court Judges’ Failure to Protect Vulnerable Elder Abuse Victims

May 2, 2013

In an unpublished decision in the Conservatorship of Feist case, the California Court of Appeal for the Second District reversed Los Angeles County Superior Court Judge Robert M. Letteau’s “unexplained and drastic reduction of [elder law attorney Marc B.] Hankin’s fee request—from $62,539.75 to $11,134.71.”

The appeals court reversed Judge Letteau’s punitive and arbitrary fee reduction because it found that his decision was “patently an abuse of discretion[,]” the result of “palpable animosity” between Judge Letteau and Mr. Hankin, “inordinately delayed…for a full year[,]” and “tainted by an evident bias against counsel.”

The Court of Appeal for the Second District decided not to publish its decision and instead to keep Judge Letteau’s willful misconduct essentially a private matter outside of public rebuke.

However, on May 20, 2004, the California Commission on Judicial Performance issued a public admonishment against Judge Letteau because of “a troubling pattern of repeated violation of ethical duties that are fundamental to the fairness…of the judicial process” and a “pervasive pattern of bias, prejudgment, ex parte communication, and abuse of judicial authority toward parties and attorneys…” in the Conservatorship of Feist and four other cases.

California Probate Court Judges’ Failure to Protect Vulnerable Elder Abuse Victims

Family Protests Placing Elderly Woman in Assisted Living

April 3, 2013

“Justice! We want justice! Free our grandmother! We want to take care of her!”

About 16 protesters outside the Whitfield County Courthouse Monday afternoon shouted and held signs to call attention to what they said was an unfair decision that resulted in an elderly family member being moved against her will into an assisted living facility.

Pam Akins said her mother-in-law, who is an Alzheimer’s patient, and the mother-in-law’s husband had lived with her and her husband, Marty, since October in their Dalton home. The Akins said caregivers sat with the older couple during the day when family members weren’t at home to watch them. Then other family members decided the woman would be better off in a nursing home, Akins said.

According to Akins, Probate Judge Sheri Blevins granted rights to those family members who have since placed the woman in professional care. That decision is under appeal.

Robert McCurry, an attorney for those family members, Greg and Rhonda Epperson, said guardianship and the best interest of the woman — not necessarily where she would live — was considered when Blevins rendered a decision March 1 after several hours of testimony. “The court heard from numerous witnesses, including a licensed neurologist (who) determined it was in (the woman’s) best interest that my client be named the guardian,” McCurry said.

Blevins declined comment because of state laws that prohibit the release of information about guardianship cases. “On pending cases, and unfortunately in this particular case, those records are sealed, and I’m not allowed to give any information at all,” Blevins said. “Hopefully an order will be coming out soon.”

Full Article and Source:
Family Protests Placing Elderly Woman in Assisted Living

NJ: Appeals Court Overturns Verdict in Whistle-Blowing Case

April 3, 2013

A state appeals court has overturned a verdict against a Bridgewater nursing home accused of firing a nurse in retaliation for him reporting allegedly improper patient care to government agencies in January 2008.

Jurors in March 2012 agreed with the claim made by James Hitesman that his termination from Bridgeway Senior Healthcare violated the Conscientious Employee Protection Act, or CEPA, which is designed to protect employees in whistle-blower cases.
That CEPA claim was based in part on Hitesman’s contention that he was fired when, in keeping with a professional code of ethics for nurses, he reported the improper patient care, according to his attorney, Paul Castronovo.

But the appellate judges found that since the code of ethics only applies to nurses, it cannot be cited as part of a CEPA claim against Bridgeway. In addition, the appellate decision released Friday said Hitesman “ lacked an objectively reasonable belief that Bridgeway’s conduct constituted improper quality of patient care or violated public policy.”

Full Article and Source:
Appeals Court Overturns Verdict in Whistle-Blowing Case Against a Bridgewater Nursing Home

Justice at Last for Disinherited Caretaker, Sam Manzo!

March 27, 2013

It has taken too long for justice to prevail — 3 1/2 years.

The arc of history is finally bending toward justice in the case of Sam Manzo and the valuable but ramshackle farm he stands to inherit in Southington. 

This past week, a Superior Court judge hearing Mr. Manzo’s appeal of a Southington probate court order removed what is probably the last significant roadblock between Mr. Manzo and his rightful inheritance.

Now the case goes to Hartford Probate Judge Robert Killian to resolve the few remaining questions. Surely the erudite, experienced Judge Killian can wrap up the case — which has been an ugly sore on the probate system — with dispatch.

The farm was the property of Josephine Smoron, who died at 92 on June 20, 2009. Ms. Smoron wanted Mr. Manzo, her longtime caretaker, to have the farm — and especially her beloved cows. She said so, specifically, in two wills.

But while Ms. Smoron lay dying in a nursing home, a probate judge who would later be censured by the Council on Probate Judicial Conduct and a lawyer who was castigated by the Statewide Grievance Committee ignored the old lady’s wishes and sought to hustle Mr. Manzo out of his eventual inheritance.

The probate judge, Bryan Meccariello, expressed doubts about Mr. Manzo’s ability to take care of Ms. Smoron as she declined and wondered whether the caretaker was putting his own interests first. He terminated Mr. Manzo’s conservatorship of Ms. Smoron.

Mr. Meccariello then allowed the lawyer, John Nugent, who became Ms. Smoron’s conservator, to set up two trusts, transfer her assets into them and name others to be the beneficiaries — putting the farm beyond Mr. Manzo’s reach. Mr. Nugent wanted the Smoron farm sold to a developer.

It was a brazen scheme. But Superior Court Judge William H. Bright, who heard Mr. Manzo’s appeal of the Southington probate court order setting up the trusts, would have none of it.

Full Article and Source:
Justice at Last for Disinherited Caretaker

See Also:
Panel Rules AGainst Lawyer in Smoron Probate Case