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Opinions Dec. 31, 2013

December 31, 2013
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The following 7th Circuit Court of Appeals opinion was posted after IL deadline Monday:
Zachary Medlock v. Trustees of Indiana University, et al.
13-1900
Civil. Affirms summary judgment in favor of IU and other defendants, holding that a student inspection of a dorm room that found marijuana followed by a police search warrant in which the pot was seized was not a violation of the Fourth Amendment. Likewise, the process through which Medlock was suspended was not a denial of due process.

Indiana Court of Appeals
Dayron Bell v. State of Indiana
82A01-1306-CR-271
Criminal. Dismisses appeal of a conviction of contempt of court as moot, declining Dayron Bell’s appeal on the basis of a public interest exception for matters of great public importance. Bell’s appeal was moot because his sentence had been served and no relief was available, and nothing in his appeal fell within the limited public-interest exception.

Paul Gillock and Kathy Gillock v. City of New Castle, Indiana
33A01-1308-CT-338
Civil tort. Affirms award of attorney fees to the city after the Gillocks’ lawsuit was dismissed with prejudice. The Gillocks’ complete failure to take any action for almost a year in furtherance of their lawsuit, including their failures to respond to discovery requests and obey the trial court’s order without any reasonable explanation, supports the trial court’s implicit legal conclusion that their claim was unreasonable and groundless. Denies the city’s request for appellate attorney fees and costs.  

Freddie L. McKnight, III v. State of Indiana
20A03-1109-CR-454
Criminal. Affirms denial of petition for post-conviction relief. McKnight claimed the post-conviction court erred when it concluded he wasn’t denied effective trial or appellate counsel assistance and that he was denied a procedurally fair post-conviction hearing.

Brad Haskin v. City of Madison, Indiana
39A05-1308-CT-422
Civil tort. Affirms summary judgment for the city of Madison on Haskin’s complaint for damages, alleging the city was negligent in designing, constructing and maintaining a sewer drain on which Haskin stepped and injured himself, among other claims. With respect to Haskin’s claim that the city was negligent in the design, construction or maintenance of the curb or sewer drain, the designated evidence demonstrates that Madison is immune from liability. With respect to Haskin’s other negligence claims, the designated evidence demonstrates that the city did not owe a duty to Haskin as it did not possess or control the condition of Jefferson Street at the time of his injury nor did it manage the pedestrian traffic or other aspects of the regatta.

Winston K. Wood v. State of Indiana
53A05-1208-CR-423
Criminal. Denial of Wood’s motion for discharge pursuant to Indiana Criminal Rule 4(C) was not error. There was sufficient evidence Wood violated Indiana Code 14-15-4-1, but Wood’s three convictions, arising as they did from one incident of leaving the scene, subjected him to double jeopardy. Accordingly vacates two of his convictions, one of the Class C felonies and the Class D felony, and remands to the trial court with instructions to refund the fines imposed for the vacated convictions. Judge Kirsch dissents.

Shawn L. Keesling v. State of Indiana (NFP)
34A02-1305-CR-540
Criminal. Affirms convictions of three counts of Class B felony robbery after pleading guilty but mentally ill. Remands for correction of sentencing order.

Marigold Overshiner and Earl Overshiner, Individually and as Parents and Guardians of their Minor Daughter, Kaitlyn Overshiner et al v. Anonymous Health Care Corp. et. al. (NFP)
67A01-1303-CT-110
Civil tort. Reverses dismissal with prejudice of the Overshiners’ medical malpractice action as they complied with the trial court order that they obtain new counsel within 90 days.

James Galloway v. State of Indiana (NFP)
82A05-1305-CR-260
Criminal. Affirms sentence for home improvement fraud: five counts as Class C felonies and three counts as Class D felonies, and being a habitual offender. Remands for the trial court to amend the abstract of judgment to show the habitual offender finding as an enhancement to Count I in Cause No. 1017.

Sophia Tompkins v. Kindred Nursing Centers, LLP, d/b/a Southwood Health and Rehabilitation Center (NFP)
84A05-1307-CT-348
Civil tort. Affirms summary judgment for Southwood on Tompkins’ complaint for damages after falling and injuring herself while getting out of bed.

James Kucholick v. State of Indiana (NFP)
34A05-1305-CR-255
Criminal. Affirms revocation of probation and order Kucholick serve his suspended sentences.

David R. McClure v. State of Indiana (NFP)
34A02-1306-CR-491
Criminal. Affirms conviction of Class B misdemeanor criminal mischief.

Jerry Johnson v. State of Indiana (NFP)
33A01-1306-CR-266
Criminal. Affirms conviction of Class C felony battery resulting in serious bodily injury.

James R. Belcher, Sr. v. Sandra G. Belcher (NFP)
32A01-1305-DR-225
Domestic relation. Affirms trial court order removing a motorcycle from the marital estate and adjusting the disposition of other assets to bring the division of the marital assets back to a 50/50 division.

Willie Norman v. State of Indiana (NFP)
20A04-1305-PC-270
Post conviction. Affirms denial of petition for post-conviction relief.

Tyler Burton v. State of Indiana (NFP)
49A05-1306-CR-269
Criminal. Affirms conviction of Class D felony battery resulting in bodily injury on a child.

Micha Seymour v. State of Indiana (NFP)
49A05-1305-CR-218
Criminal. Affirms adjudication as a habitual offender.

Herman & Kittle Properties, Inc. v. G & G Construction Company of Indiana (NFP)
49A05-1304-PL-169
Civil plenary. Affirms denial of Herman & Kittle’s motion to dismiss a breach-of-contract claim against it.

Walter Rowley v. State of Indiana (NFP)
49A02-1305-CR-402
Criminal. Affirms imposition of $200 drug interdiction fee following Rowley’s guilty plea to Class D felony possession of a controlled substance and Class A misdemeanor driving while suspended.

Richard Wilson v. State of Indiana (NFP)
49A02-1304-CR-373
Criminal. Affirms conviction of Class A misdemeanor battery with bodily injury.

Edward L. Humes v. State of Indiana (NFP)

39A01-1305-CR-211
Criminal. Affirms sentence, which included an enhancement for being a habitual substance offender, imposed for Class D felony possession of cocaine and Class A misdemeanors possession of a synthetic cannabinoid and resisting law enforcement.

James Pigg v. State of Indiana (NFP)
34A02-1210-CR-838
Criminal. Affirms denial of motion to correct error, wherein Pigg moved for a change of judge following convictions of one count each of Class C and Class D felony battery.

Lightning Rod Mutual Insurance Company v. Todd A. Messner, an Incapacitated Adult, by his Permanent Co-Guardians and Next Friends, James A. Messner and Judith M. Messner (NFP)

20A03-1305-CT-188
Civil tort. Affirms trial court finding that the Messners’ policy with Lighting Rod Mutual Insurance Co. is ambiguous.

Jacob Stidham v. State of Indiana (NFP)
79A02-1211-CR-939
Criminal. Affirms trial court decision allowing the state to charge Stidham with Class B felony rape two days before his trial was to begin on other charges. Affirms convictions of rape and Class C felony confinement.

Richard Kozecar v. State of Indiana (NFP)
75A04-1306-CR-263
Criminal. Affirms conviction of Class D felony receiving stolen property.

In the Matter of the Termination of the Parent-Child Relationship of: K.W., Minor Child, C.C., Mother v. Indiana Department of Child Services (NFP)
49A02-1305-JT-468
Juvenile. Affirms involuntary termination of parental rights.

In the Matter of the Termination of the Parent-Child Relationship of: J.A. (Minor Child), and M.R. (Mother) v. The Indiana Department of Child Services (NFP)
53A01-1307-JT-306
Juvenile. Affirms termination of parental rights.

Anthony Eugene Fields v. State of Indiana (NFP)
50A05-1304-CR-186
Criminal. Affirms convictions and sentence for Class B felony dealing in methamphetamine, Class D felony possession of meth, Class D felony possession of precursors with intent to manufacture, Class D felony maintaining a common nuisance and Class A misdemeanor possession of paraphernalia.

Carolyn Bostick v. State of Indiana (NFP)
49A05-1305-CR-226
Criminal. Affirms conviction of Class D felony theft.

Megan Pierce v. State of Indiana (NFP)
64A03-1304-CR-151
Criminal. Affirms sentence following guilty plea to Class B felony burglary.

Tonya Williams v. State of Indiana (NFP)
79A04-1303-CR-151
Criminal. Affirms sentence for Class C felony operating a vehicle while driving privileges were forfeited for life.

Tyson A. Hudson v. State of Indiana (NFP)
02A03-1305-CR-178
Criminal. Affirms convictions of Class C felony battery on a pregnant woman and Class A misdemeanor domestic battery.

Billye D. Gaulden v. State of Indiana (NFP)
02A04-1212-CR-651
Criminal. Re-affirms conviction and sentence for Class B felony robbery.

Marteques L. Black v. State of Indiana (NFP)
02A04-1306-CR-276
Criminal. Affirms conviction of Class B felony burglary.

Harold Evans, Jr. v. State of Indiana (NFP)
17A04-1307-CR-338
Criminal. Affirms sentence imposed following guilty plea to Class C felony possession of methamphetamine.

Paul L. Mishler, Jr. v. State of Indiana (NFP)
20A03-1209-PC-405
Post conviction. Affirms denial of petition for post-conviction relief.

Indiana Tax Court
Vern R. Grabbe v. Carroll County Assessor, Neda K. Duff
49T10-1206-TA-35
Tax. Finds the Indiana Board of Tax Review did not err in applying Grabbe’s 2009 agricultural property assessment to the 2010 tax year. The board’s determination that Grabbe’s 2010 assessment must be reduced to its 2009 assessed value is not contrary to law.

Vern R. Grabbe v. Carroll County Assessor, Neda K. Duff

49T10-1108-TA-51
Tax. Affirms 2009 assessment of Grabbe’s agricultural property. The board’s determination upholding the 2009 assessment is supported by substantial and reliable evidence and is not contrary to law.  

The Indiana Supreme Court posted no opinions by IL deadline. The 7th Circuit Court of Appeals posted no Indiana decisions by IL deadline.
 

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  1. Yes diversity is so very important. With justice Rucker off ... the court is too white. Still too male. No Hispanic justice. No LGBT justice. And there are other checkboxes missing as well. This will not do. I say hold the seat until a physically handicapped Black Lesbian of Hispanic heritage and eastern religious creed with bipolar issues can be located. Perhaps an international search, with a preference for third world candidates, is indicated. A non English speaker would surely increase our diversity quotient!!!

  2. First, I want to thank Justice Rucker for his many years of public service, not just at the appellate court level for over 25 years, but also when he served the people of Lake County as a Deputy Prosecutor, City Attorney for Gary, IN, and in private practice in a smaller, highly diverse community with a history of serious economic challenges, ethnic tensions, and recently publicized but apparently long-standing environmental health risks to some of its poorest residents. Congratulations for having the dedication & courage to practice law in areas many in our state might have considered too dangerous or too poor at different points in time. It was also courageous to step into a prominent and highly visible position of public service & respect in the early 1990's, remaining in a position that left you open to state-wide public scrutiny (without any glitches) for over 25 years. Yes, Hoosiers of all backgrounds can take pride in your many years of public service. But people of color who watched your ascent to the highest levels of state government no doubt felt even more as you transcended some real & perhaps some perceived social, economic, academic and professional barriers. You were living proof that, with hard work, dedication & a spirit of public service, a person who shared their same skin tone or came from the same county they grew up in could achieve great success. At the same time, perhaps unknowingly, you helped fellow members of the judiciary, court staff, litigants and the public better understand that differences that are only skin-deep neither define nor limit a person's character, abilities or prospects in life. You also helped others appreciate that people of different races & backgrounds can live and work together peacefully & productively for the greater good of all. Those are truths that didn't have to be written down in court opinions. Anyone paying attention could see that truth lived out every day you devoted to public service. I believe you have been a "trailblazer" in Indiana's legal community and its judiciary. I also embrace your belief that society's needs can be better served when people in positions of governmental power reflect the many complexions of the population that they serve. Whether through greater understanding across the existing racial spectrum or through the removal of some real and some perceived color-based, hope-crushing barriers to life opportunities & success, movement toward a more reflective representation of the population being governed will lead to greater and uninterrupted respect for laws designed to protect all peoples' rights to life, liberty & the pursuit of happiness. Thanks again for a job well-done & for the inevitable positive impact your service has had - and will continue to have - on countless Hoosiers of all backgrounds & colors.

  3. Diversity is important, but with some limitations. For instance, diversity of experience is a great thing that can be very helpful in certain jobs or roles. Diversity of skin color is never important, ever, under any circumstance. To think that skin color changes one single thing about a person is patently racist and offensive. Likewise, diversity of values is useless. Some values are better than others. In the case of a supreme court justice, I actually think diversity is unimportant. The justices are not to impose their own beliefs on rulings, but need to apply the law to the facts in an objective manner.

  4. Have been seeing this wonderful physician for a few years and was one of his patients who told him about what we were being told at CVS. Multiple ones. This was a witch hunt and they shold be ashamed of how patients were treated. Most of all, CVS should be ashamed for what they put this physician through. So thankful he fought back. His office is no "pill mill'. He does drug testing multiple times a year and sees patients a minimum of four times a year.

  5. Brian W, I fear I have not been sufficiently entertaining to bring you back. Here is a real laugh track that just might do it. When one is grabbed by the scruff of his worldview and made to choose between his Confession and his profession ... it is a not a hard choice, given the Confession affects eternity. But then comes the hardship in this world. Imagine how often I hear taunts like yours ... "what, you could not even pass character and fitness after they let you sit and pass their bar exam ... dude, there must really be something wrong with you!" Even one of the Bishop's foremost courtiers said that, when explaining why the RCC refused to stand with me. You want entertaining? How about watching your personal economy crash while you have a wife and five kids to clothe and feed. And you can't because you cannot work, because those demanding you cast off your Confession to be allowed into "their" profession have all the control. And you know that they are wrong, dead wrong, and that even the professional code itself allows your Faithful stand, to wit: "A lawyer may refuse to comply with an obligation imposed by law upon a good faith belief that no valid obligation exists. The provisions of Rule 1.2(d) concerning a good faith challenge to the validity, scope, meaning or application of the law apply to challenges of legal regulation of the practice of law." YET YOU ARE A NONPERSON before the BLE, and will not be heard on your rights or their duties to the law -- you are under tyranny, not law. And so they win in this world, you lose, and you lose even your belief in the rule of law, and demoralization joins poverty, and very troubling thoughts impeaching self worth rush in to fill the void where your career once lived. Thoughts you did not think possible. You find yourself a failure ... in your profession, in your support of your family, in the mirror. And there is little to keep hope alive, because tyranny rules so firmly and none, not the church, not the NGO's, none truly give a damn. Not even a new court, who pay such lip service to justice and ancient role models. You want entertainment? Well if you are on the side of the courtiers running the system that has crushed me, as I suspect you are, then Orwell must be a real riot: "There will be no curiosity, no enjoyment of the process of life. All competing pleasures will be destroyed. But always — do not forget this, Winston — always there will be the intoxication of power, constantly increasing and constantly growing subtler. Always, at every moment, there will be the thrill of victory, the sensation of trampling on an enemy who is helpless. If you want a picture of the future, imagine a boot stamping on a human face — forever." I never thought they would win, I always thought that at the end of the day the rule of law would prevail. Yes, the rule of man's law. Instead power prevailed, so many rules broken by the system to break me. It took years, but, finally, the end that Dr Bowman predicted is upon me, the end that she advised the BLE to take to break me. Ironically, that is the one thing in her far left of center report that the BLE (after stamping, in red ink, on Jan 22) is uninterested in, as that the BLE and ADA office that used the federal statute as a sword now refuses to even dialogue on her dire prediction as to my fate. "C'est la vie" Entertaining enough for you, status quo defender?

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