Opinions

Opinions Oct. 1, 2014

October 1, 2014
Indiana Supreme Court
Robert Corbin v. State of Indiana
75S03-1401-CR-13
Criminal. Affirms trial court denial of a motion to dismiss a charge of attempted child seduction and remands for further proceedings. Whether Corbin’s Facebook communications propositioning a 16-year-old student for sex constituted the required substantial step toward the crime is a question not ripe for dismissal on interlocutory appeal. Justices found the charges match the statutory elements sufficient to survive a motion to dismiss at this time.
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Opinions Sept. 30, 2014

September 30, 2014
Indiana Supreme Court
Gersh Zavodnik v. Irene Harper
49A04-1307-PL-316
Civil plenary. Denies transfer to Zavodink’s appeal of the dismissal of his appeal for failure to file a timely brief and appendix. Offers guidance to courts on how to deal with prolific, abusive litigants.
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Opinions Sept. 29, 2014

September 29, 2014
Indiana Court of Appeals
Bryan L. Good v. Wells Fargo Bank, NA.
20A03-1401-MF-14
Mortgage foreclosure. Reverses grant of partial summary judgment in favor of Wells Fargo and the subsequent judgment of foreclosure. The bank has not shown its status as holder of the promissory note signed by Good for purposes of the Uniform Commercial Code. Remands for further proceedings.
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Opinions Sept. 26, 2014

September 26, 2014
Indiana Court of Appeals
Shacare Terry v. Community Health Network, Inc.
49A04-1312-PL-630
Civil plenary.  Affirms dismissal of Terry’s claim of breach of duty against Community Hospital, but reverses dismissal of intentional infliction of emotional distress claim. The breach of duty claim is, in substance, a medical malpractice claim, so the court did not have jurisdiction because it had not been submitted to the medical review panel yet. The trial court had subject matter over Terry’s emotional distress claim.
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Opinions Sept. 25, 2014

September 25, 2014
The following Indiana Supreme Court opinion was posted after IL deadline Wednesday:
Scott Logan v. State of Indiana
20S05-1405-CR-339
Criminal. Reverses conviction of Class C felony child molesting and six-year sentence. Although the trial court technically complied with Criminal Rule 4(C), Logan’s 1,291-day delay between the filing of the charge and the beginning of his trial violated his constitutional right to a speedy trial. Orders Logan released from incarceration and remands for further proceedings.
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Opinions Sept. 24, 2014

September 24, 2014
Indiana Court of Appeals
Albert L. Hauck and Mark Wood v. City of Indianapolis
49A04-1403-PL-136
Civil plenary. Affirms summary judgment in favor of Indianapolis on Hauck’s and Wood’s complaint regarding the Indianapolis Metropolitan Police Department’s failure to promote them to captain. The word “endeavor” as used in the ordinance means to “attempt to,” and the plaintiffs failed to show the city did not maintain proportional representation of former Marion County Sheriff’s Department deputies and Indianapolis Police Department officers throughout the divisions and appointed ranks of IMPD as contemplated by the revised code.
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Opinions Sept. 23, 2014

September 23, 2014
Indiana Court of Appeals
The Branham Corporation v. Newland Resources, LLC; Samuel Sutphin; White River Funding Corp.; et al; Thomas N. Eckerle; Thomas N. Eckerle Prof. Corp. v. The Branham Corporation
06A05-1311-CT-572
Civil tort. Affirms the trial court’s summary judgment order in favor of the defendants. Reverses the order dismissing attorney Thomas Eckerle without prejudice and remands for entry of summary judgment in favor of Eckerle. Finds the trial court correctly determined the defendants were entitled to summary judgment because Branham filed its complaint for nonpayment of damages after the two-year statute of limitations had run.
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Opinions Sept. 22, 2014

September 22, 2014
Indiana Supreme Court
In the Matter of: Trezanay M. Atkins
49S00-1306-DI-435.
Attorney discipline. Suspends Atkins for two years without automatic reinstatement, finding she violated Indiana Rules of Professional Conduct 8.4(b), committing a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness; and 8.4(c), engaging in conduct involving dishonesty, fraud, deceit or misrepresentation.
 
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Opinions Sept. 19, 2014

September 19, 2014
Indiana Court of Appeals
City of Mitchell v. Randy Phelix
47A01-1402-PL-88
Civil plenary. Reverses denial of its complaint for a declaratory judgment related to former Mitchell city policeman Randy Phelix’s claim for medical expenses due to disabilities resulting from dismantling methamphetamine labs. The appeals court held that the trial court erred when it ruled that Phelix was entitled to have the city pay his medical bills under I.C. 36-8-4-5 despite the worker’s compensation carrier’s denial of his claim.
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Opinions Sept. 18, 2014

September 18, 2014
Indiana Supreme Court
State of Indiana v. Frank Greene
49S02-1403-PC-172
Post conviction. Reverses grant of post-conviction relief, which would have reduced Greene’s Class B felony criminal confinement conviction to a Class D felony. Greene did not receive ineffective assistance of trial or appellate counsel due to his attorneys’ failure to present allegedly controlling precedent from this court. Greene mischaracterizes the application of Long v. State.
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Opinions Sept. 17, 2014

September 17, 2014
Indiana Court of Appeals
Robert P. Benavides v. State of Indiana (NFP)
18A02-1405-PC-318
Post conviction. Affirms dismissal of petition for writ of state habeas corpus.
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Opinions Sept. 16, 2014

September 16, 2014
Indiana Court of Appeals
Willie Jenkins v. Mary Jenkins
49A02-1403-DR-132
Domestic relation. Reverses grant of Mary Jenkins’ motion to vacate a contempt hearing. It was not in the interests of justice for the trial court to ignore its rule of allowing 15 days to respond and granting her motion prior to allowing Willie Jenkins time for response. Remands for further proceedings.
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Opinions Sept. 15, 2014

September 15, 2014
Indiana Court of Appeals
Jeremiah Lee Collins v. State of Indiana (NFP)
21A01-1405-CR-192
Criminal.  Affirms revocation of probation.
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Opinions Sept. 12, 2014

September 12, 2014
Indiana Court of Appeals
In re the Marriage of Tina M. Harpenau v. Robin P. Harpenau
62A01-1401-DR-37
Domestic relation.  Affirms grant of father’s petition to modify, awarding him primary physical custody of the children and granting mother the same parenting time as father originally had, as well as that mother pay child support. The trial court did not abuse its discretion in modifying custody due to her proposed move or in modifying child support accordingly.
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Opinions Sept. 11, 2014

September 11, 2014
7th Circuit Court of Appeals
Securities and Exchange Commission v. First Choice Management Services Inc., et al; CRM Energy Partners and John W. Hannah v. Joseph D. Bradley, Receiver
14-1270, 14-2284
U.S. District Court, Northern District of Indiana, South Bend Division, Judge Robert L. Miller Jr.
Civil. Affirms denial of CRM’s motion to intervene in the sale of an oil and gas lease in order to compensate victims of fraud. Dismisses its appeal of the District Court’s approval of the sale. CRM waited too long to intervene in the action.
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Opinions Sept. 10, 2014

September 10, 2014
Indiana Supreme Court
Barbara J. Pohl v. Michael G. Pohl
32S04-1404-DR-245
Domestic relation. Reverses trial court and remands with instructions to apply the incapacity maintenance statute’s “substantial and continuing change in circumstances” standard to the evidence presented at the modification hearing. Any maintenance provision in a settlement agreement, regardless of its grounds, is modifiable only if the agreement so provides. The agreement in this matter contains such a provision.
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Opinions Sept. 9, 2014

September 9, 2014
Indiana Court of Appeals
Robert O. Hedrick v. Angela R. Gilbert
47A01-1401-DR-1
Domestic relation. Affirmed in part, reversed in part. Affirms denial of Hedrick’s motion to modify support for post-secondary educational expenses and affirms order of contempt and $500 fine issued to Hedrick for failing to abide by prior court rulings. Reverses the award to Gilbert of $1,000 in attorney fees as part of the contempt order, ruling that the trial court did not make findings that Hedrick’s petition to modify was frivolous, unreasonable or groundless.
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Opinions Sept. 8, 2014

September 8, 2014
Indiana Court of Appeals
Citizens Action Coalition of Indiana, Inc., Save the Valley, Inc., Sierra Club, and Valley Watch, Inc. v. Duke Energy Indiana, Inc., Indiana Office of Utility Consumer Counselor
93A02-1305-EX-394
Agency action. Remands to the Indiana Utility Regulatory Commission its order approving Duke’s request to include power plant construction costs of the Edwardsport coal-gasification plant from Oct. 1, 2011, to March 31, 2012, in a rate adjustment rider. Remands for findings as to whether a delay was chargeable to Duke and, if so, what impact the delay had on Duke’s customers’ rates. Also remands for a clear statement of the policy and evidentiary considerations underlying IURC’s determination that 50 percent of the plant was deemed in-service.
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Opinions Sept. 5, 2014

September 5, 2014
7th Circuit Court of Appeals
Marilyn Rae Baskin v. Penny Bogan
14-2386
Midori Fujii v. Commissioner of the Indiana State Department of Health
14-2387
Pamela Lee v. Brian Abbott
14-2388
U.S. District Court, Southern District of Indiana, Indianapolis Division, Chief Judge Richard Young
Civil. Affirms District Court judgment invalidating and enjoining Indiana and Wisconsin prohibitions on same-sex marriage. The 7th Circuit consolidated the three same-sex marriage cases from Indiana into one opinion with the single case from Wisconsin, Wolf et al. v. Walker, et al., 14:2526. The court confined its ruling to the 14th Amendment’s Equal Protection Clause and did not address the plaintiffs’ due process arguments. Rejects Indiana’s responsible procreation argument, finding Indiana’s prohibition on same-sex marriage discriminates against gays and lesbians.
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Opinions Sept. 4, 2014

September 4, 2014
Indiana Supreme Court
TP Orthodontics, Inc., Christopher Kesling, DDS, MS, Adam Kesling, and Emily Kesling, et al. v. Andrew Kesling, Individually and as Trustee of the Andrew C. Kesling Trust Dated March 28, 2001 et al.
46S03-1405-MI-337
Miscellaneous. Finds the trial court abused its discretion in ordering disclosure of the full special litigation committee report, as portions of it containing privileged information cannot be disclosed to the sibling shareholders. Remands to the trial court to conduct an in camera review of the full report to determine whether the designate material is in fact privileged.
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Opinions Sept. 3, 2014

September 3, 2014
Indiana Supreme Court
Natural Resources Defense Council v. Poet Biorefining- North Manchester, LLC, Poet Biorefining- Cloverdale, LLC, Central Indiana Ethanol, Inc., et al.
49S02-1405-MI-313
Miscellaneous. IDEM was not required to formally amend Indiana’s state implementation plan with the EPA to effectuate its change in how it interprets the regulatory phrase “chemical process plant.” IDEM’s interpretation to exclude fuel ethanol plants under the definition of “chemical process plant” is legally permissible.
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Opinions Sept. 2, 2014

September 2, 2014
7th Circuit Court of Appeals
James M. Sweeney, et al. v. Gov. Michael Pence, et al.
13-1264
U.S. District Court, Northern District of Indiana, Hammond Division, Chief Judge Philip P. Simon.
Civil. Affirms dismissal of union’s lawsuit arguing the Right to Work Act violates union members’ rights under the U.S. Constitution and is preempted by federal labor legislation. The legislation is not preempted by the scheme of federal labor law and does not violate any constitutional rights. Judge Tinder for the majority writes that the controversy of the law needs to be addressed legislatively, not through the courts. Chief Judge Wood dissents.
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Opinions Aug. 29, 2014

August 29, 2014
Indiana Court of Appeals
C.H. v. State of Indiana
49A02-1310-JV-904
Juvenile. Affirms officer’s stop of C.H. because he was believed to be a suspect in a crime and the order of restitution because C.H. never objected to the order he pay restitution. Reverses adjudication of what would be Class B misdemeanor unlawful entry of a motor vehicle because the same evidence was used to adjudicate C.H. of that charge and what would be Class A misdemeanor trespass. Remands for further proceedings.
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Opinions Aug. 28, 2014

August 28, 2014
Indiana Court of Appeals
Nightingale Home Healthcare, Inc. v. Carey Helmuth and Physiocare Home Healthcare, LLC
29A04-1403-PL-121
Civil plenary. Affirms summary judgment in favor of Helmuth and Physiocare Home Healthcare LLC, in which the trial court concluded that Helmuth’s 10-day break in employment with Nightingale served as the starting point of his limited non-competition and non-disclosure agreement.
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Opinions Aug. 27, 2014

August 27, 2014
7th Circuit Court of Appeals
Kenneth Owen Scrogham v. Carolyn W. Colvin, acting commissioner of Social Security
13-3601
U.S. District Court, Southern District of Indiana, New Albany Division, Judge Tanya Walton Pratt.
Civil. Reverses denial of application for disability benefits and remands for further proceedings. The administrative law judge’s methodology was flawed in several respects. Three logical errors – overstating the significance of Scrogham’s daily activities, overreliance on his rehabilitative efforts as proof of his fitness for full-time work, and misinterpreting the significance of his extensive treatment – had a material effect on the ALJ’s credibility and residual functional capacity assessments.
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  1. I like the concept. Seems like a good idea and really inexpensive to manage.

  2. I don't agree that this is an extreme case. There are more of these people than you realize - people that are vindictive and/or with psychological issues have clogged the system with baseless suits that are costly to the defendant and to taxpayers. Restricting repeat offenders from further abusing the system is not akin to restricting their freedon, but to protecting their victims, and the court system, from allowing them unfettered access. From the Supreme Court opinion "he has burdened the opposing party and the courts of this state at every level with massive, confusing, disorganized, defective, repetitive, and often meritless filings."

  3. So, if you cry wolf one too many times courts may "restrict" your ability to pursue legal action? Also, why is document production equated with wealth? Anyone can "produce probably tens of thousands of pages of filings" if they have a public library card. I understand this is an extreme case, but our Supreme Court really got this one wrong.

  4. He called our nation a nation of cowards because we didn't want to talk about race. That was a cheap shot coming from the top cop. The man who decides who gets the federal government indicts. Wow. Not a gentleman if that is the measure. More importantly, this insult delivered as we all understand, to white people-- without him or anybody needing to explain that is precisely what he meant-- but this is an insult to timid white persons who fear the government and don't want to say anything about race for fear of being accused a racist. With all the legal heat that can come down on somebody if they say something which can be construed by a prosecutor like Mr Holder as racist, is it any wonder white people-- that's who he meant obviously-- is there any surprise that white people don't want to talk about race? And as lawyers we have even less freedom lest our remarks be considered violations of the rules. Mr Holder also demonstrated his bias by publically visiting with the family of the young man who was killed by a police offering in the line of duty, which was a very strong indicator of bias agains the offer who is under investigation, and was a failure to lead properly by letting his investigators do their job without him predetermining the proper outcome. He also has potentially biased the jury pool. All in all this worsens race relations by feeding into the perception shared by whites as well as blacks that justice will not be impartial. I will say this much, I do not blame Obama for all of HOlder's missteps. Obama has done a lot of things to stay above the fray and try and be a leader for all Americans. Maybe he should have reigned Holder in some but Obama's got his hands full with other problelms. Oh did I mention HOlder is a bank crony who will probably get a job in a silkstocking law firm working for millions of bucks a year defending bankers whom he didn't have the integrity or courage to hold to account for their acts of fraud on the United States, other financial institutions, and the people. His tenure will be regarded by history as a failure of leadership at one of the most important jobs in our nation. Finally and most importantly besides him insulting the public and letting off the big financial cheats, he has been at the forefront of over-prosecuting the secrecy laws to punish whistleblowers and chill free speech. What has Holder done to vindicate the rights of privacy of the American public against the illegal snooping of the NSA? He could have charged NSA personnel with violations of law for their warrantless wiretapping which has been done millions of times and instead he did not persecute a single soul. That is a defalcation of historical proportions and it signals to the public that the government DOJ under him was not willing to do a damn thing to protect the public against the rapid growth of the illegal surveillance state. Who else could have done this? Nobody. And for that omission Obama deserves the blame too. Here were are sliding into a police state and Eric Holder made it go all the faster.

  5. JOE CLAYPOOL candidate for Superior Court in Harrison County - Indiana This candidate is misleading voters to think he is a Judge by putting Elect Judge Joe Claypool on his campaign literature. paragraphs 2 and 9 below clearly indicate this injustice to voting public to gain employment. What can we do? Indiana Code - Section 35-43-5-3: Deception (a) A person who: (1) being an officer, manager, or other person participating in the direction of a credit institution, knowingly or intentionally receives or permits the receipt of a deposit or other investment, knowing that the institution is insolvent; (2) knowingly or intentionally makes a false or misleading written statement with intent to obtain property, employment, or an educational opportunity; (3) misapplies entrusted property, property of a governmental entity, or property of a credit institution in a manner that the person knows is unlawful or that the person knows involves substantial risk of loss or detriment to either the owner of the property or to a person for whose benefit the property was entrusted; (4) knowingly or intentionally, in the regular course of business, either: (A) uses or possesses for use a false weight or measure or other device for falsely determining or recording the quality or quantity of any commodity; or (B) sells, offers, or displays for sale or delivers less than the represented quality or quantity of any commodity; (5) with intent to defraud another person furnishing electricity, gas, water, telecommunication, or any other utility service, avoids a lawful charge for that service by scheme or device or by tampering with facilities or equipment of the person furnishing the service; (6) with intent to defraud, misrepresents the identity of the person or another person or the identity or quality of property; (7) with intent to defraud an owner of a coin machine, deposits a slug in that machine; (8) with intent to enable the person or another person to deposit a slug in a coin machine, makes, possesses, or disposes of a slug; (9) disseminates to the public an advertisement that the person knows is false, misleading, or deceptive, with intent to promote the purchase or sale of property or the acceptance of employment;

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