Opinions July 30, 2013

July 30, 2013
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The following opinion was released after IL deadline Monday:
7th Circuit Court of Appeals
Mobile Tool International, Inc. and MTI Insulated Products, Inc. v. Davis H. Elliot Company, Inc.
Civil. Affirms summary judgment for Mobile. Finds that the indemnity provision in the invoice did not supersede the language in the lease so Elliot was required to defend and indemnify Mobile against claims made by an injured employee.

Today's opinions:
Indiana Court of Appeals

In Re the Adoption of: P.A.H., f/k/a P..V., Minor Child, B.D. and L.H.C., v. J.H.
Adoption. Reverses trial court’s order granting post-adoption visitation to P.H.’s biological uncle, J.H. Finds the lower court lacked authority to grant post-adoption visitation rights to J.H. since he is not within any statutory category of persons entitled to visitation rights.

In Re: The Paternity of Jo.J., J.W.J., v. D.C.
Juvenile paternity. Affirms the judgment of the trial court to modify the father’s child support obligation and to jail father for contempt. The COA concludes the trial court may have erred in considering mother’s request for “temporary support” prematurely. It did not err in modifying father’s weekly child support payment.

Darla M. Brenton, as Personal Representative of the Estate of Evelyn Norfleet, Deceased v. Leslie D. Lutz
Estate, supervised. Affirms trial court’s order removing Brenton as special administrator of her mother’s estate. Brenton had successfully sought to be appointed as administrator for the sole purpose of collecting damages for wrongful death. However, when the trial court removed her as administrator after learning her brother had already been named as the executor of her mother’s estate, Brenton argued that the trial court did not comply with Indiana Code Section 29-1-10-6. This did not persuade the COA. The appeals court ruled without a valid appointment of a special administrator, there is not reason to seek removal under I.C. Section 29-1-10-6.      

Adam Miller v. State of Indiana
Criminal. Reverses trial court’s denial of Miller’s motion to suppress. Concludes the search of Miller’s backpack was impermissible under the Fourth Amendment of the U.S. Constitution. Judge Cale Bradford dissents, arguing the search of Miller’s backpack did not violate the Fourth Amendment of the U.S. Constitution or Article I, Section 11 of the Indiana Constitution. Further, he asserts, the trial court did not abuse its discretion in allowing the state to reopen its evidence at the suppression hearing.  

Kevin Buckley v. State of Indiana (NFP)

Criminal. Affirms conviction for Class C felony.

Robert Marks v. State of Indiana (NFP)

Criminal. Affirms trial court’s revocation of Marks’ probation.  

Anonymous Hospital, Inc., v. Jane Doe, Et Al., and Indiana Department of Insurance (NFP)
Civil tort. Reverses and remands for further proceedings the trial court granting Doe partial summary judgment. Rules Doe’s complaint for damages falls within the purview of the Indiana Medical Malpractice Act.

Joseph Dowell and Angie L. Grove and Cody Rowe v. American Modern Home Insurance Company (NFP)
Civil tort. Affirms summary judgment for American Modern Home Insurance Co.

Gary Wayne Shortt v. State of Indiana (NFP)
Criminal. Affirms the denial of Shortt’s motion for earned credit time and to correct error in his sentence.

Floyd D. Stewart v. State of Indiana (NFP)

Criminal. Affirms Stewart’s conviction of two counts of Class A felony dealing in cocaine and sentence to concurrent terms of 23 years, with 21 years executed and two years suspended.  

Kendal R. Pitts v. State of Indiana (NFP)

Criminal. Affirms Pitts’ 30-year sentence for Class A felony rape.

Dominique Devon Hayes v. State of Indiana (NFP)

Criminal. Affirms Hayes’ sentence of 17 years for one count of Child Molesting as a Class B felony.  

Margaret Smith v. Kristopher Schaler (NFP)

Civil tort. Affirms trial court’s denial of Smith’s motion to dismiss Schaler’s complaint pursuant to Indiana Trial Rule 12(B)(6). Judge Nancy Vaidik dissents, arguing the trial court did err because Schaler has only pled to spoliation-of-evidence claim in his complaint and spoliation of evidence is not a recognized cause of action in Indiana.

Victor Fointno v. Clair Barnes, Et Al., (NFP)
Small Claim. Affirms trial court’s entry of judgment against Fointno and in favor of the defendants.

James A. Groff v. State of Indiana (NFP)
Criminal. Affirms Groff’s statutory no-contact order as a condition of his executed sentence following his plea of guilty to sexual misconduct with a minor, a Class B felony.  

In the Matter of the Term. of Parent-Child Rel. of M.G. & A.G. (Minor Children), and S.S.(Mother) & S.G.(Father), v. Child Advocates Inc. and Indiana Department of Child Services (NFP)
Juvenile termination. Affirms the termination of mother’s and father’s parental rights.

Truong Vu v. State of Indiana (NFP)
Criminal. Affirms Vu’s convictions for criminal deviate conduct, as a Class B felony; sexual battery, as a Class D felony; and two counts of criminal confinement, as Class D felonies. Remands with instructions for the court to correct its written sentencing statement and any related documents to include the term of probation.  

Jose F. Medina v. State of Indiana (NFP)

Criminal. Affirms Medina’s conviction of and sentence for Class A felony attempted child molesting.

Adam Sullender v. State of Indiana (NFP)
Criminal. Affirms Sullender’s sentence for Class C felony battery of a pregnant woman and Class D felony strangulation.
Martez Brown v. State of Indiana (NFP)
Criminal. Affirms Brown’s 150-year sentence after being convicted of two counts of murder and one count of Class B felony robbery.

Billy Ray Mead v. State of Indiana (NFP)
Criminal. Affirms trial court’s revocation of Mead’s probation and order for him to serve his previously suspended five-year sentence in the Indiana Department of Correction with credit for time served.  

The Indiana Supreme Court and Tax Court release no opinions prior to IL deadline. The 7th Circuit Court of Appeals released no Indiana decisions prior to IL deadline.


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  1. Mr Smith, while most reading these posts are too busy making money or cranking out what passes for justice in our legal-techocrat order,I have often attempted to resist your cynicism, well thought out cynicism I admit. Please know that I give up, I can resist your logic no more. From Locknarian Platonic Guardians, through the incorporation doctine, to substantive due process, to Roe, to the latest demands that all states redefine the foundational stone of all civilized social order, the history of America's fall from Grace is inscribed on the dockets of the judiciary. From the federal judges' apostasy of a kind that would have caused John Jay to recommend capital punishment, to the state judges' refusal to protect the sanctuary of the state constitutions, seeing in them merely a font from which to protect pornographers, those who scream "f*ck the police" and pemubras and emanations following the federal apostates, it has been the judiciary, by and large, that has brought the Experiment in Ordered Liberty to an end. The Founders had great and high hopes that they had designed the third branch to save the Republic from such a time as this ... rather the third branch has allowed itself to be used to drag the Republic into rat infested sewers from which no nation has ever returned. Save me from tomorrow:

  2. Especially I would like to see all the republican voting patriotic good ole boys to stop and understand that the wars they have been volunteering for all along (especially the past decade at least) have not been for God & Jesus etc no far from it unless you think George Washington's face on the US dollar is god (and we know many do). When I saw the movie about Chris Kyle, I thought wow how many Hoosiers are just like this guy, out there taking orders to do the nasty on the designated bad guys, sometimes bleeding and dying, sometimes just serving and coming home to defend a system that really just views them as reliable cannon fodder. Maybe if the Christians of the red states would stop volunteering for the imperial legions and begin collecting welfare instead of working their butts off, there would be a change in attitude from the haughty professorial overlords that tell us when democracy is allowed and when it isn't. To come home from guarding the borders of the sandbox just to hear if they want the government to protect this country's borders then they are racists and bigots. Well maybe the professorial overlords should gird their own loins for war and fight their own battles in the sandbox. We can see what kind of system this really is from lawsuits like this and we can understand who it really serves. NOT US.... I mean what are all you Hoosiers waving the flag for, the right of the president to start wars of aggression to benefit the Saudis, the right of gay marriage, the right for illegal immigrants to invade our country, and the right of the ACLU to sue over displays of Baby Jesus? The right of the 1 percenters to get richer, the right of zombie banks to use taxpayer money to stay out of bankruptcy? The right of Congress to start a pissing match that could end in WWIII in Ukraine? None of that crud benefits us. We should be like the Amish. You don't have to go far from this farcical lawsuit to find the wise ones, they're in the buggies in the streets not far away....

  3. Moreover, we all know that the well heeled ACLU has a litigation strategy of outspending their adversaries. And, with the help of the legal system well trained in secularism, on top of the genuinely and admittedly secular 1st amendment, they have the strategic high ground. Maybe Christians should begin like the Amish to withdraw their services from the state and the public and become themselves a "people who shall dwell alone" and foster their own kind and let the other individuals and money interests fight it out endlessly in court. I mean, if "the people" don't see how little the state serves their interests, putting Mammon first at nearly every turn, then maybe it is time they wake up and smell the coffee. Maybe all the displays of religiosity by American poohbahs on down the decades have been a mask of piety that concealed their own materialistic inclinations. I know a lot of patriotic Christians don't like that notion but I entertain it more and more all the time.

  4. If I were a judge (and I am not just a humble citizen) I would be inclined to make a finding that there was no real controversy and dismiss them. Do we allow a lawsuit every time someone's feelings are hurt now? It's preposterous. The 1st amendment has become a sword in the hands of those who actually want to suppress religious liberty according to their own backers' conception of how it will serve their own private interests. The state has a duty of impartiality to all citizens to spend its judicial resources wisely and flush these idiotic suits over Nativity Scenes down the toilet where they belong... however as Christians we should welcome them as they are the very sort of persecution that separates the sheep from the wolves.

  5. What about the single mothers trying to protect their children from mentally abusive grandparents who hide who they truly are behind mounds and years of medication and have mentally abused their own children to the point of one being in jail and the other was on drugs. What about trying to keep those children from being subjected to the same abuse they were as a child? I can understand in the instance about the parent losing their right and the grandparent having raised the child previously! But not all circumstances grant this being OKAY! some of us parents are trying to protect our children and yes it is our God given right to make those decisions for our children as adults!! This is not just black and white and I will fight every ounce of this to get denied