Opinions

Opinions July 11, 2014

July 11, 2014
Indiana Court of Appeals
Scott A. Wright v. State of Indiana
45A05-1310-CR-526
Criminal. Vacates Wright’s conviction of Class A felony child molesting and remands for a new trial. Finds the trial court erred in replacing a juror during deliberations. The juror was the lone vote to acquit and had stopped deliberating but he was not prejudicing the other jurors nor impairing Wright’s right to a trial by jury. Moreover, the trial court failed to explain to the jury that the removal of the single juror was not because the court agreed or disagreed with the juror’s views.
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Opinions July 10, 2014

July 10, 2014
7th Circuit Court of Appeals
Adam Hartman v. EBSCO Industries Inc., et al
13-3398
U.S. District Court, Northern District of Indiana, South Bend Division, Judge Theresa L. Springmann.
Civil. Affirms summary judgment in favor of defendants on Hartman’s lawsuit alleging negligence and strict liability after he was injured accidently by a gun. Indiana has a 10-year statute of repose for products-liability actions and his gun was then 14 years old. There are two exceptions to the statute, but he cannot satisfy either one.
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Opinions June 9, 2014

July 9, 2014
Indiana Supreme Court
Veolia Water Indianapolis, LLC, City of Indianapolis, Department of Waterworks, and City of Indianapolis v. National Trust Insurance Company and FCCI Insurance Company a/s/o Ultra Steak, Inc., et al.
49S04-1301-PL-8
Civil plenary. Grants petition for rehearing on the issue of whether the insurers are third-party beneficiaries to the management agreement between Veolia and the city of Indianapolis. As to all issues not expressly addressed in the principal opinion, the Court of Appeals is summarily affirmed.
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Opinions July 8, 2014

July 8, 2014
The following 7th Circuit Court of Appeals opinion was posted after IL deadline Monday:
Julia Hutt v. AbbVie Products LLC
13-1481
U.S. District Court, Northern District of Indiana, Fort Wayne Division, Judge Joseph S. Van Bokkelen.
Civil. Affirms summary judgment in favor of AbbVie Products, formerly known as Solvay Pharmaceuticals, on Hutt’s age discrimination and retaliation claims and her state law claim asserting a violation of the Indiana Wage Payment Statute. The District Court correctly concluded that Hutt’s age discrimination claim fails under the direct method and she could not prove the company retaliated against her for filing a complaint with the EEOC. Finds Hutt failed to develop her bad-faith argument with regard to her claim alleging violation of the Wage Payment Statute.
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Opinions July 7, 2014

July 7, 2014
Indiana Court of Appeals
Z.A. v. State of Indiana
49A02-1311-JV-973
Juvenile. Reverses adjudication that Z.A. committed what would be Class D felony theft if committed by an adult. The state did not prove that Z.A. exerted unauthorized control over the television he and his mother purchased together when he took it from his mother’s home over her objection.
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Opinions July 3, 2014

July 3, 2014
7th Circuit Court of Appeals
Gene Williams on behalf of Pamela J. Townsend v. Carolyn W. Colvin, acting commissioner of Social Security
13-3607
U.S. District Court, Northern District of Indiana, Fort Wayne Division, Magistrate Judge John E. Martin.
Civil. Reverses District Court’s affirmation of the administrative law judge’s decision that Townsend became totally disabled as of Nov. 1, 2008.
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Opinions July 2, 2014

July 2, 2014
Indiana Supreme Court
In the Matter of: Steve L. Brejensky
29S00-1205-DI-277
Discipline. Imposes at least one-year suspension without automatic reinstatement based on Brejensky’s conviction of Class A misdemeanor conversion and lack of remorse. He may be reinstated only after proving his remorse, rehabilitation and fitness to practice law. The costs of the proceeding are assessed against him.
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Opinions July 1, 2014

July 1, 2014
Indiana Court of Appeals
James Brown v. State of Indiana

49A02-1312-CR-1023
Criminal. Affirms conviction of Class B misdemeanor public intoxication, holding that Brown was intoxicated in a public place and the evidence was sufficient to prove he harassed, annoyed or alarmed another person, one of the four conduct elements under the statute amended in 2012.
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Opinions June 30, 2014

June 30, 2014
Indiana Supreme Court
Keion Gaddie v. State of Indiana
49S02-1312-CR-789.
Criminal. Reverses conviction of Class A misdemeanor resisting law enforcement, holding that I.C. 35-44.1-3-1(a)(3), the statute defining the offense of resisting law enforcement by fleeing after being ordered to stop, must be construed to require that a law enforcement officer’s order to stop be based on reasonable suspicion or probable cause. On that basis, there was insufficient evidence against Gaddie to support the conviction.
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Opinions June 27, 2014

June 27, 2014
Indiana Supreme Court
South Shore Baseball, LLC d/b/a Gary South Shore RailCats and Northwest Sports Venture, LLC v. Juanita DeJesus
45S03-1308-CT-531
Civil tort. Reverses trial court denial of a motion for summary judgment to the Railcats defendants in a case brought by a fan injured by a foul ball hit into the stands at a minor-league baseball game. Holding the defendants are entitled to summary judgment, remands to the trial court to enter judgment accordingly.

 
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Opinions June 26, 2014

June 26, 2014
Indiana Court of Appeals
Traci Nelson v. Tony Nelson
41A01-1309-DR-424
Domestic relation. Affirms order denying Traci Nelson’s motion to relocate and modifying custody of her child in favor of father Tony Nelson. Finds mother’s reasons for relocation were legitimate and in good faith and that the conclusion that the Relocation Statute factors disfavored relocation and merited a change in custody to father was not clearly erroneous.
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Opinions June 25, 2014

June 25, 2014
Indiana Tax Court
The Speedway Public Library v. Indiana Department of Local Government Finance
49T10-1103-TA-22
Tax. Affirms the Department of Local Government Finance’s final determination rejecting the appropriations and levies associated with the library’s 2011 budget and decision to reinstitute the appropriations and levies associated with the 2010 budget. Public notice of the town council’s Sept. 13 meeting was statutorily required.  
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Opinions June 24, 2014

June 24, 2014
7th Circuit Court of Appeals
Tyrone L. Jones v. Richard Brown
12-3245
U.S. District Court, Southern District of Indiana, Terre Haute Division, Judge William T. Lawrence.
Civil. Affirms denial of Jones’ petition for habeas relief. Finds his trial counsel was not constitutionally ineffective under Strickland. 
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Opinions June 23, 2014

June 23, 2014
7th Circuit Court of Appeals
United States of America v. Walbert Keith Farmer
13-3373
U.S. District Court, Southern District of Indiana, New Albany Division, Judge Tanya Walton Pratt.
Criminal. Vacates conditions of supervised release that required Farmer to submit to certain searches at the request of his probation officer, even without a warrant or reasonable suspicion, and a ban on self-employment. These special conditions do not bear a reasonably direct relationship to Farmer’s underlying crimes of attempted extortion. Remands for further proceedings.
 
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Opinions June 20, 2014

June 20, 2014
7th Circuit Court of Appeals
James Nichols v. Michigan City Plant Planning Department, Michigan City Area Schools
13-2893
U.S. District Court, Northern District of Indiana, South Bend Division, Chief Judge Philip P. Simon.
Civil. Affirms summary judgment for Michigan City schools on Nichols’ allegations of Title VII violations. He did not provide sufficient evidence that demonstrates that the harassment he allegedly suffered while working as a temporary janitor was severe or pervasive. He also failed to provide sufficient evidence that his alleged harasser was a proximate cause of his firing because affidavits from his supervisors show that he would have been let go even if there was no feud between Nichols and the harasser.
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Opinions June 19, 2014

June 19, 2014
7th Circuit Court of Appeals
Devon Groves v. United States of America
12-3253
U.S. District Court, Northern District of Indiana, South Bend Division, Judge Robert L. Miller Jr.
Civil. Affirms denial of Groves’ Section 2255 motion to vacate, set aside or correct his sentence of 240 months in prison for one count each of possession of a firearm by a felon and possession of ammunition by a felon. Finds Groves was provided with effective assistance of counsel.
 
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Opinions June 18, 2014

June 18, 2014
7th Circuit Court of Appeals
Gabriel V. Mendoza v. United States of America
13-3195, 13-3196
U.S. District Court, Northern District of Indiana, South Bend Division, Judge Robert L. Miller Jr.
Civil. Affirms denial of Mendoza’s petition for relief from his drug convictions. He was not deprived due process when an interpreter relocated her position in the courtroom to translate for a witness nor was he provided ineffective assistance of counsel.
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Opinions June 17, 2014

June 17, 2014
Indiana Court of Appeals
Cruisin', Inc., d/b/a Cruisin' Auto Sales v. Springleaf Financial Services of Indiana, Inc., f/k/a American General Financial Services
39A01-1309-CC-423
Civil collection. Affirms judgment in favor of Springleaf. Finds Cruisin’ breached the terms of the contract by giving the title to the car buyer rather than mailing it to Springleaf. Remands to correct a scrivener’s error and enter the reimbursement amount at $2,659.02. Also remands to enter the judgment damage award against the dealership and buyer jointly and severally.
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Opinions June 16, 2014

June 16, 2014
Indiana Court of Appeals
J.C. Jennings, II v. State of Indiana (NFP)
45A03-1310-CR-425
Criminal. Affirms conviction of Class D felony sexual battery.
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Opinions June 13, 2014

June 13, 2014
Randy L. Knapp v. State of Indiana
28S00-1305-LW-327
Criminal. Affirms in all respects the murder conviction and life without parole sentence for Randy L. Knapp in the killing of Stacey Lawson. The court rejected Knapp’s claims that crime scene photos and expert witness testimony were improperly admitted and that his sentence wasn’t supported by evidence or was inappropriate in light of his character and nature of his offense.
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Opinions June 12, 2014

June 12, 2014
Indiana Court of Appeals
Gabriel McQuay v. State of Indiana
49A02-1311-CR-954
Criminal. Affirms convictions of Class D felony criminal confinement and Class A misdemeanor battery. Under an objective analysis, the circumstances of the encounter as well as the statements and actions of R.S. and Officer Travis Williams indicate that the primary purpose of the interrogation was to enable police assistance to meet an ongoing emergency. As such, R.S.’s identification of herself and McQuay were not testimonial statements. The Confrontation Clause did not bar their admission at McQuay’s trial.
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Opinions June 11, 2014

June 11, 2014
Shannon Robinson and Bryan Robinson v. Erie Insurance Exchange
49S02-1311-PL-733
Civil plenary. Affirms summary judgment in favor of Erie Insurance on the issue of whether its automobile policy provided uninsured motorists coverage for automobile property damaged caused by a hit-and-run driver where no personal injury resulted. Because personal injury did not result in the accident, the Erie policy does not provide uninsured motorist coverage with respect to the property damage sustained by the Robinsons’ vehicle.
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Opinions June 10, 2014

June 10, 2014
7th Circuit Court of Appeals
Eric Grandberry v. Brian Smith, superintendent, Plainfield Correctional Facility
12-2081
U.S. District Court, Southern District of Indiana, Terre Haute Division, Judge William T. Lawrence.
Civil. Reverses discipline and revocation of 30 days of Grandberry’s good-time credits for unauthorized use of an electronic device. Remands with instructions to issue a writ of habeas corpus restoring Grandberry’s good-time credits. Library staff asked him to use the computer to fill out forms that he was not supposed to complete as head inmate law clerk.
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Opinions June 9, 2014

June 9, 2014
7th Circuit Court of Appeals
Matthew Whitfield v. International Truck and Engine Corp.
13-1876
U.S. District Court, Southern District of Indiana, Indianapolis Division, Chief Judge Richard L. Young.
Civil. Affirms in part and reverses in part ruling in favor of International Truck and Engine Corp. on Whitfield’s action alleging discrimination in failure to hire and violations of the Civil Rights Act. The District Court ignored some evidence or made conclusions not supported by the evidence. Remands for further proceedings.
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Opinions June 6, 2014

June 6, 2014
Indiana Court of Appeals
Commissioner of Labor ex rel Vincent Scialdone and Antimo Scialdone v. An Island, LLC (NFP)
62A01-1312-PL-548
Civil plenary. Affirms trial court decision to not order An Island LLC to pay any 2010 wages to Antimo or Vincent Scialdone and to not award the plaintiffs attorney fees.
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  1. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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