Opinions

Opinions Nov. 14, 2014

November 14, 2014
Indiana Court of Appeals
Timothy W. Paul v. Stone Artisans, Ltd.
29A04-1406-PL-258
Civil plenary. Affirms finding that Paul breached his contract with Stone Artisans. Finds that although the contact did not include measurements, the contract is still enforceable because it is reasonably certain in the terms and conditions. Also rules the contract did comply with the Home Improvement Contract Act despite missing two of the required nine elements.
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Opinions Nov. 13, 2014

November 13, 2014
7th Circuit Court of Appeals
United States of America v. Evelyn Rivera Borrero, et al.

13-3430, 13-3468, 13-3516, 13-3517, 13-3559
U.S. District Court, Northern District of Indiana, South Bend Division. Judge Jon E. DeGuilio.
Criminal. Reverses convictions of conspiring to violate 8 U.S.C. Section 1324 (a)(1)(A)(iii) and (iv) by shielding unauthorized aliens from detection and encouraging them to live in the United States; and vacates convictions of conspiracy to commit mail or wire fraud. Remands for entry of acquittal on the first count. The government’s legal argument that vehicle tiles and license plates are “property” from the perspective of Indiana is a legal error.
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Opinions Nov. 12, 2014

November 12, 2014
Indiana Court of Appeals
Jeffrey Z. Hayden v. State of Indiana
55A04-1403-CR-116
Criminal. Affirms sufficient evidence to convict Hayden of burglary, theft and residential entry. Remands with instructions to vacate guilty verdict on residential entry as it is a lesser-included offense of burglary and to clarify the entry of judgment as to whether to enter judgment and sentence on the theft conviction or to vacate the jury’s guilty verdict.
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Opinions Nov. 11, 2014

November 11, 2014
All courts are closed Nov. 11 in observance of Veterans Day.
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Opinions Nov. 10, 2014

November 10, 2014
Indiana Court of Appeals
Christa Allen v. Richard Hinchman, M.D.; Richard Tanner, M.D.; and Jeffery Smith, M.D.
49A02-1311-PL-975
Civil plenary. Reverses summary judgment in favor of the doctors on Allen’s medical malpractice claim. Holds that the standard of care for doctors practicing in prisons is the same as the standard of care for doctors practicing outside of prison.
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Opinions Nov. 7, 2014

November 7, 2014
Indiana Supreme Court
Gregory F. Zoeller, Attorney General and Rick J. Ruble, Commissioner of the In. Dept. of Labor v. James M. Sweeney, David A. Fagan, Charles Severs et. al.
45S00-1309-PL-596
Civil plenary. Reverses finding by Lake Superior Court that I.C. 22-6-6-8 and 22-6-6-10 violate Article I, Section 21 of the Indiana Constitution. Any compulsion to provide services does not constitute a demand made by the state. Justice Rucker concurs in result with separate opinion.
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Opinions Nov. 6, 2014

November 6, 2014
Indiana Court of Appeals
Victor Keeylen v. State of Indiana
49A05-1308-CR-419
Criminal. Grants rehearing and affirms original opinion in all respects. Clarifies point from original opinion and still holds that it is unlikely the detective attempted to mislead the judicial officer into issuing the search warrant.
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Opinions Nov. 5, 2014

November 5, 2014
Indiana Court of Appeals
Erie Insurance Exchange v. Troy Sams and Teresa Sams
44A03-1403-CT-97
Civil tort. Affirms judgment ordering Erie Insurance to pay the Samses $63,924.89 for losses they suffered after a storm damaged their home. The trial court did not err in finding the policy covered the storm damage to the home and the judgment amount was not clearly erroneous.
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Opinions Nov. 3, 2014

November 3, 2014
Indiana Court of Appeals
In the Matter of the Termination of the Parent-Child Relationship of D.B.M. and H.B. (Father) v. Indiana Department of Child Services
02A03-1405-JT-171
Juvenile. Affirms trial court’s order to terminate father’s parental rights. Rules the testimony of Allen County Department of Child Services supervisor was cumulative of the other evidence so any error in admitting the testimony was harmless. Also finds the evidence presented at the hearing supports the trial court’s conclusion that the conditions which necessitated the child’s removal from the father’s care would not be remedied.
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Opinions Oct. 31, 2014

October 31, 2014
Indiana Court of Appeals
Michael Dwain Neal v. Amanda Lee Austin
49A02-1404-DR-225
Domestic relation. Reverses grant of Austin’s petition for post-secondary education expenses on behalf of her and Neal’s adult child. The trial court did not have authority to issue an order for educational support. Holds that I.C. 31-16-6-6(c) and -6(d) necessitates that where the most recent order establishing a child support obligation was issued after June 30, 2012, the child must file a petition for educational needs before he or she becomes 19 years of age.
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Opinions Oct. 30, 2014

October 30, 2014
Indiana Supreme Court
Wayne A. Campbell v. State of Indiana
13S05-1410-PC-682
Post conviction. Affirms denial of petition for post-conviction relief, finding no ineffective assistance by trial counsel for, in part, failing to object to an instruction on the definition of “intentionally.” The second sentence of the contested instruction serves to emphasize the heavy burden placed on the state to prove that a defendant acted intentionally.
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Opinions Oct. 29, 2014

October 29, 2014
7th Circuit Court of Appeals
Marshall G. Welton v. Shani J. Anderson, et al.
13-3336
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge Jane E. Magnus-Stinson.
Civil. Affirms dismissal of Welton’s claims of malicious prosecution, violations of the Fourth and 14th amendments and state law violations. Welton failed to state a predicate constitutional violation in support of his malicious prosecution claim and failed to show the requisite malice.
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Opinions Oct. 28, 2014

October 28, 2014
7th Circuit Court of Appeals
United States of America v. Trevor Hinds
13-3543
U.S. District Court, Southern District of Indiana, New Albany Division, Judge Tanya Walton Pratt.
Criminal. Affirms two-level sentencing enhancement for production or trafficking under U.S.S. G. 2B1.1(b)(11)(B)(i). Hinds’ crime involved the production of counterfeit access devices (credit cards) and the court did not err in applying the enhancement. Vacates the two special conditions imposed: that Hinds pay a portion of the court-ordered substance abuse treatment and drug testing and that he submit to suspicionless searches and seizures. The court did not make a finding whether Hinds could pay for the testing, and the government concedes that the search and seizure condition is unlawfully broad and invasive.
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Opinions October 27, 2014

October 27, 2014
Indiana Court of Appeals
In Re the Adoption of K.W.: M.W. v. S.L. and T.L.
10A04-1309-AD-469
Adoption. Reverses decree granting S.L. and T.L.’s petition to adopt K.W. The trial court violated father’s due process rights when it failed to rule on his request for appointed counsel. Remands for the trial court to determine whether father, who is incarcerated, is indigent, and if so, to appoint counsel to represent him at a new adoption hearing.
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Opinions Oct. 24, 2014

October 24, 2014
Indiana Court of Appeals
219 Kenwood Holdings, LLC v. Properties 2006, LLC
45A03-1401-MI-49
Miscellaneous. Affirms finding that Properties 2006 LLC substantially complied with the requirements of I.C. 6-1.1-25-4.5(e), which requires the purchaser of property sold at a tax sale to notify the owner of record of, among other things, the purchaser’s intent to petition for a tax deed on or after a specified date.
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Opinions Oct. 23, 2013

October 24, 2014
Indiana Court of Appeals
Gabina Hernandez v. State of Indiana (NFP)
20A03-1403-CR-78
Criminal. Affirms convictions of Class A misdemeanors conversion and contributing to the delinquency of a minor.<
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Opinions Oct. 22, 2014

October 22, 2014
Indiana Supreme Court
Gary Wayne Oswalt v. State of Indiana
35S02-1401-CR-10
Criminal. Oswalt preserved appellate review of three for-cause challenges of prospective jurors, but because the trial court was within its discretion to deny all of them, affirms his convictions. Holds as a matter of first impression that parties satisfy the exhaustion rule the moment they use their final peremptory challenge, regardless of whom they strike. Also holds that if parties fully comply with the exhaustion rule and demonstrate they were unable to remove any prospective juror for lack of peremptories, appellate courts may review denial of any motion to strike for cause, regardless of whether a challenged juror actually served on the jury.
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Opinions Oct. 21, 2014

October 21, 2014
Indiana Court of Appeals
Gary A. Gallien v. State of Indiana
22A01-1402-PC-50
Post-conviction. Reverses denial of post-conviction relief due to defense attorney’s failure to raise the issue of maximum consecutive sentences under I.C. 35-50-1-2. The majority held Gallien was prejudiced by his defender’s failure to raise the issue regarding burglaries that were “closely related in time, place, and circumstance.” Dissenting judge Cale Bradford agreed with the majority’s analysis but would affirm the trial court because he didn’t believe Gallien was prejudiced by his counsel’s failure to raise the issue.
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Opinions Oct. 20, 2014

October 20, 2014
7th Circuit Court of Appeals
United States of America v. Kenneth Schmitt
13-2894
U.S. District Court for the Southern District of Indiana, Evansville Division, Chief Judge Richard Young.
Criminal. Affirms conviction for possessing a firearm while being a felon and sentence of 110 months in prison with three years of supervised release. Finds police officers did not violate the Fourth Amendment’s restrictions on warrantless searches because the officers were doing a protective sweep to secure the premises when they unlocked the basement door and searched the basement where the AK-15 semi-automatic assault rifle was found. Rules although the District Court erred in admitting evidence of Schmitt’s conviction for possession of methamphetamine, the error was harmless. And concludes District Court did not err in applying a four-level enhancement to Schmitt’s base offense level.
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Opinions Oct. 17, 2014

October 17, 2014
Indiana Court of Appeals
Dominic Johnson v. State of Indiana (NFP)
49A05-1403-CR-125
Criminal. Affirms convictions for auto theft, a Class C felony, and resisting law enforcement, a Class A felony.
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Opinions Oct. 16, 2014

October 16, 2014
Indiana Supreme Court
Indiana State Ethics Commission, Office of Inspector General, and David Thomas, in his Official Capacity as Inspector General v. Patricia Sanchez
49S02-1402-PL-80
Civil plenary. Affirms State Ethics Commission’s decision that Sanchez’s conduct – keeping several items that were state property after she was fired from the Department of Workforce Development – ran afoul of an administrative rule and that she should be barred from future state executive branch employment. Double jeopardy does not bar the proceeding before the commission, the criminal court’s probable cause determination is not binding upon the commission, and there is substantial independent evidence to support the commission’s decision.
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Opinions Oct. 15, 2014

October 15, 2014
7th Circuit Court of Appeals
Randy M. Swisher v. Porter County Sheriff’s Dept., et al.
13-3602
U.S. District Court, Northern District of Indiana, South Bend Division, Magistrate Judge Christopher A. Nuechterlein.
Civil. Reverses judgment in favor of the defendants on Swisher’s 42 U.S.C. 1983 complaint that he was denied medical care during his nine-month stint in jail. The magistrate judge, while fully crediting the plaintiff’s testimony at an evidentiary hearing, erred in dismissing Swisher’s suit for failure to exhaust administrative remedies.
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Opinions Oct. 14, 2014

October 14, 2014
Indiana Court of Appeals
Brandon Earthman v. State of Indiana (NFP)
49A04-1404-CR-147
Criminal. Affirms 12-year sentence for Class B felony robbery.
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Opinions Oct. 13, 2014

October 13, 2014
There are no opinions Monday because the courts are closed in observance of Columbus Day.
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Opinions Oct. 10, 2014

October 10, 2014
Indiana Court of Appeals
Susan A. Snyder v. Town of Yorktown, Delaware County Surveyor, Delaware County Drainage Board, Randall Miller & Associates, Inc., and Watson Excavating, Inc.
18A02-1405-CT-332
Civil tort. Reverses grant of the defendants’ motion to dismiss Snyder’s complaint regarding inverse condemnation because her complaint sufficiently states a claim for it. Affirms dismissal as it relates to her claim for trespass because the allegations in her complaint fail to establish any circumstances under which she would be entitled to relief for trespass. Remands for further proceedings.
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  1. Good luck, but as I have documented in three Hail Mary's to the SCOTUS, two applications (2007 & 2013),a civil rights suit and my own kicked-to-the-curb prayer for mandamus. all supported in detailed affidavits with full legal briefing (never considered), the ISC knows that the BLE operates "above the law" (i.e. unconstitutionally) and does not give a damn. In fact, that is how it was designed to control the lawyers. IU Law Prof. Patrick Baude blew the whistle while he was Ind Bar Examiner President back in 1993, even he was shut down. It is a masonic system that blackballs those whom the elite disdain. Here is the basic thrust:https://en.wikipedia.org/wiki/Blackballing When I asked why I was initially denied, the court's foremost jester wrote back that the ten examiners all voted, and I did not gain the needed votes for approval (whatever that is, probably ten) and thus I was not in .. nothing written, no explanation, just go away or appeal ... and if you appeal and disagree with their system .. proof positive you lack character and fitness. It is both arbitrary and capricious by its very design. The Hoosier legal elites are monarchical minded, and rejected me for life for ostensibly failing to sufficiently respect man's law (due to my stated regard for God's law -- which they questioned me on, after remanding me for a psych eval for holding such Higher Law beliefs) while breaking their own rules, breaking federal statutory law, and violating federal and state constitutions and ancient due process standards .. all well documented as they "processed me" over many years.... yes years ... they have few standards that they will not bulldoze to get to the end desired. And the ISC knows this, and they keep it in play. So sad, And the fed courts refuse to do anything, and so the blackballing show goes on ... it is the Indy way. My final experience here: https://www.scribd.com/document/299040062/Brown-ind-Bar-memo-Pet-cert I will open my files to anyone interested in seeing justice dawn over Indy. My cases are an open book, just ask.

  2. Looks like 2017 will be another notable year for these cases. I have a Grandson involved in a CHINS case that should never have been. He and the whole family are being held hostage by CPS and the 'current mood' of the CPS caseworker. If the parents disagree with a decision, they are penalized. I, along with other were posting on Jasper County Online News, but all were quickly warned to remove posts. I totally understand that some children need these services, but in this case, it was mistakes, covered by coorcement of father to sign papers, lies and cover-ups. The most astonishing thing was within 2 weeks of this child being placed with CPS, a private adoption agency was asking questions regarding child's family in the area. I believe a photo that was taken by CPS manager at the very onset during the CHINS co-ocerment and the intent was to make money. I have even been warned not to post or speak to anyone regarding this case. Parents have completed all requirements, met foster parents, get visitation 2 days a week, and still the next court date is all the way out till May 1, which gives them(CPS) plenty of to time make further demands (which I expect) No trust of these 'seasoned' case managers, as I have already learned too much about their dirty little tricks. If they discover that I have posted here, I expect they will not be happy and penalized parents again. Still a Hostage.

  3. They say it was a court error, however they fail to mention A.R. was on the run from the law and was hiding. Thus why she didn't receive anything from her public defender. Step mom is filing again for adoption of the two boys she has raised. A.R. is a criminal with a serious heroin addiction. She filed this appeal MORE than 30 days after the final decision was made from prison. Report all the facts not just some.

  4. Hysteria? Really Ben? Tell the young lady reported on in the link below that worrying about the sexualizing of our children is mere hysteria. Such thinking is common in the Royal Order of Jesters and other running sex vacays in Thailand or Brazil ... like Indy's Jared Fogle. Those tempted to call such concerns mere histronics need to think on this: http://www.msn.com/en-us/news/us/a-12-year-old-girl-live-streamed-her-suicide-it-took-two-weeks-for-facebook-to-take-the-video-down/ar-AAlT8ka?li=AA4ZnC&ocid=spartanntp

  5. This is happening so much. Even in 2016.2017. I hope the father sue for civil rights violation. I hope he sue as more are doing and even without a lawyer as pro-se, he got a good one here. God bless him.

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