Opinions

Opinions July 17, 2012

July 17, 2012
Indiana Court of Appeals
Darrell Larue Brown v. State of Indiana
10A04-1109-CR-551
Criminal. Affirms Brown’s sentence following guilty plea to two counts of Class B felony child molesting. Brown waived his right to appeal.
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Opinions July 16, 2012

July 16, 2012
Indiana Court of Appeals
M & M Investment Group, LLC v. Ahlemeyer Farms, Inc. and Monroe Bank
03A04-1112-CC-639
Civil collection. Affirms trial court order denying M&M’s petition for a tax deed for property of which Monroe Bank was the mortgagee, holding that the court properly denied the petition. Finds that the Indiana pre-tax-sale notice statute violates the Due Process Clause of the 14th Amendment.
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Opinions July 13, 2012

July 13, 2012
Indiana Court of Appeals
John W. Schoettmer and Karen Schoettmer v. Jolene C. Wright and South Central Community Action Program, Inc.
49A04-1108-CT-406
Civil tort. Affirms summary judgment in favor of Wright and South Central Community Action Program Inc., finding that the plaintiffs did not timely file notice as governed by the Indiana Tort Claims Act.
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Opinions July 12, 2012

July 12, 2012
7th Circuit Court of Appeals
Carlene M. Craig, et al. v. FedEx Ground Package System Inc.
10-3115
U.S. District Court, Northern District of Indiana, South Bend Division, Judge Robert L. Miller Jr.
Multidistrict litigation. Certifies two questions to the Kansas Supreme Court in a suit that was based on the Employee Retirement Income Security act and Kansas law regarding whether FedEx drivers are employees or independent contractors. Craig is the “lead” case in a nationwide class action.
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Opinions July 11, 2012

July 11, 2012
7th Circuit Court of Appeals
Michael Dean Overstreet v. Bill Wilson, superintendent, Indiana State Prison
11-2276
U.S. District Court, Northern District of Indiana, South Bend Division, Chief Judge Philip P. Simon.
Civil. Finds Overstreet, who is sentenced to death, did not receive constitutionally ineffective assistance of counsel relating to the handling of an alleged plea bargain, the handling of spectators in the courtroom, and relating to the sentencing proceeding. Judge Wood dissents regarding the attorneys’ handling of the sentencing proceeding and would grant the petition for writ of habeas corpus limited to the sentence imposed.
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Opinions July 10, 2012

July 10, 2012
Indiana Court of Appeals
In the Matter of the Adoption of N.W.R.; M.R. v. R.B. and R.B., and Indiana Dept. of Child Services
36A01-1109-AD-407
Adoption. Reverses the trial court’s grant of a petition to adopt to foster parents R.B. and R.B., and remands to the trial court with instructions to reconsider evidence after DCS completes investigation of aunt M.R. as a potential adoptive replacement. The court held that the trial court erred in denying DCS’ motion to withdraw consent for the petition after discovering it failed to conduct a complete adoptive placement investigation.
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Opinions July 9, 2012

July 9, 2012
Indiana Court of Appeals
Derrick Baker v. State of Indiana (NFP)
48A02-1110-CR-929
Criminal. Affirms trial court conviction of dealing cocaine as a Class B felony.

 
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Opinions July 6, 2012

July 6, 2012
7th Circuit Court of Appeals
U.S. v. Justin Cephus, Jovan Stewart, and Stanton L. Cephus
10-3838, 10-3840, 11-1098
Criminal. Affirms in a case involving conspiracy to entice underage girls to engage in prostitution and transport them across state lines the life sentences without parole of multiple convictions for Justin and Stanton Cephus. The order remands to the trial court to enable the judge to reconcile a discrepancy in Stewart’s sentence of 324 months in federal prison. The judge said Stewart’s sentences were to be served consecutively; the written order indicates the sentences are concurrent.
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Opinions July 5, 2012

July 5, 2012
7th Circuit Court of Appeals
Nipponkoa Insurance Company, Ltd. v. Atlas Van Lines Inc.
3:09-CV-168
Civil plenary/contract. Reverses the U.S. District Court for the Southern District of Indiana’s summary judgment for defendant and remands for further proceedings, finding summary judgment inappropriate pending further determination of the relationship between plaintiffs, defendant and ancillary parties involved in a shipping loss.  
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Opinions July 3, 2012

July 3, 2012
Indiana Court of Appeals
In Re: The Matter of the Paternity of S.C.: K.C. (Appellant), and C.C. (Appellee), and B.H. (Appellee-Intervenor)
30A01-1107-JP-322
Juvenile paternity. Reaffirms original opinion affirming Hancock Circuit Court’s ruling vacating a finding of paternity for C.C. because another paternity action on behalf of B.H. was pending in Fayette Circuit. The decision grants rehearing in Hancock Circuit, finding that mother, S.C., did not inform the Hancock court of B.H’s pending paternity proceeding.
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Opinions July 2, 2012

July 2, 2012
Indiana Supreme Court
Annette (Oliver) Hirsch v. Roger Lee Oliver
29S02-1109-DR-530
Domestic relations/emancipation. Affirms the trial court ruling that father Roger Lee Oliver is not obligated to contribute to his daughter’s post-secondary expenses and remands to the trial court to determine the correct date of the daughter’s emancipation.
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Opinions June 29, 2012

June 29, 2012
7th Circuit Court of Appeals
Zachary Medlock v. Trustees of Indiana University, et al.
11-3288
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge Tanya Walton Pratt.
Civil. Dismisses Medlock’s appeal of the denial of his request for a preliminary injunction to prevent the enforcement of a one-year suspension from the school. The appeal is moot because the 7th Circuit cannot grant any effectual relief.

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Opinions June 28, 2012

June 28, 2012
7th Circuit U.S. Court of Appeals
Robert Jones v. C&D Technologies, Inc.
1:10-cv-696
Civil plenary. Affirms summary judgment for C&D Technologies, Inc. granted by U.S. District Court for the Southern District of Indiana, upholding that Jones was not entitled to benefits from the Family and Medical Leave Act because he did not receive treatment during his absence.
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Opinions June 27, 2012

June 27, 2012
7th Circuit Court of Appeals
A.B., a child by his next friend, Linda Kehoe v. Housing Authority of South Bend
11-2581
U.S. District Court, Northern District of Indiana, South Bend Division, Chief Judge Philip P. Simon.
Civil. Dismisses appeal of the order denying A.B.’s motion for a preliminary injunction to prevent the housing authority from pursuing the eviction in state court. Since A.B. has already been evicted, the appeal is moot.
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Opinions June 26, 2012

June 26, 2012
Indiana Court of Appeals
Gwen E. Morgal-Henrich v. David Brian Henrich
46A05-1111-DR-645
Domestic relation. Affirms the trial court did not abuse its discretion by applying the equal division presumption in dividing the marital assets. Reverses trial court’s use of $390 per week as David Henrich’s weekly gross income for purposes of calculating child support. Remands for a recalculation and recommends the trial court uses an income averaging calculation due to his fluctuating income.
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Opinions June 25, 2012

June 25, 2012
Indiana Supreme Court
Sharon Gill, on her own behalf and on behalf of the Estate of Gale Gill v. Evansville Sheet Metal Works, Inc.

49S05-1111-CV-672
Civil. Reverses trial court ruling for defendant that Gill did not bring her claim within the time Indiana law requires for a claim arising from the construction of an “improvement to real property.” There is a genuine issue of material fact as to whether Evansville Sheet Metal Works’ work constituted an “improvement to real property” as that phrase is commonly understood.
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Opinions June 22, 2012

June 22, 2012
Indiana Court of Appeals
Rafael Bocanegra v. State of Indiana
20A03-1108-CR-361
Criminal. Affirms conviction of Class C felony forgery. Holds that potential injury remains a sufficient basis for a finding of criminal intent in a forgery prosecution. Remands for vacation of his identity deception conviction. Senior Judge Sullivan dissents.
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Opinions June 21, 2012

June 21, 2012
Indiana Supreme Court
Indiana Department of Revenue v. United Parcel Service, Inc.
49S10-1107-TA-417
Tax. Reverses Tax Court’s grant of summary judgment to UPS and denial of the department of revenue’s motion as to whether UPS was exempt from the adjusted gross income tax. None of the summary judgment materials presented to the Tax Court and Supreme Court establishes that during the years in question UPINSCO and UPS Re were doing business within the state of Indiana. Because this is a necessary condition in order to be “subject to” the premium tax, UPS failed in its burden of establishing that it is entitled to summary judgment as a matter of law.
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Opinions June 20, 2012

June 20, 2012
Indiana Supreme Court
In the Matter of: Douglas W. Patterson
82S00-1111-DI-662
Discipline. Disbars Patterson for committing three counts of Class D felony theft of client funds and for engaging in conduct involving dishonesty, fraud, deceit or misrepresentation.
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Opinions June 19, 2012

June 19, 2012
Indiana Court of Appeals
Alan Patrick McEntee v. Wells Fargo Bank, N.A.
75A03-1106-MF-277
Mortgage foreclosure. Reverses summary judgment in favor of Wells Fargo and remands to the trial court, holding that the court erred because Wells Fargo failed to establish there was no material fact that McEntee had defaulted; and that Wells Fargo failed to establish the absence of a genuine issue of material fact as to McEntee’s affirmative defense. 
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Opinions June 18, 2012

June 18, 2012
7th Circuit Court of Appeals
Joseph Agnew v. NCAA
United States District Court, Southern District of Indiana, Indianapolis Division, Judge Jane Magnus-Stinson.
11-3066
Civil. Affirms District Court’s dismissal of lawsuit against the NCAA, holding plaintiffs failed to show that the NCAA’s policies limiting athletic scholarships violate the Sherman Act, because the case does not present for discussion the existence of a student athlete labor market.
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Opinions June 15, 2012

June 15, 2012
Indiana Court of Appeals
David Ashabranner v. Sandy Wilkins, f/k/a Ashabranner
22A01-1109-DR-411
Domestic relations. Affirms in part and remands in part. Affirms the trial court’s denial of emancipation of a child and remands for recalculation of child support payments, adjusting to include payment from the mother as well as the father.
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Opinions June 14, 2012

June 14, 2012
Indiana Court of Appeals
In Re the Term. of the Parent-Child Rel. of: C.V., O.V., and J.V. and G.J. v. The Indiana Dept. of Child Services (NFP)
10A01-1111-JT-516
Juvenile. Affirms termination of parental rights.
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Opinions June 13, 2012

June 13, 2012
7th Circuit Court of Appeals
United States of America v. Cristofer Tichenor
11-2433
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge Sarah Evans Barker
Criminal. Affirms 300-month sentence following guilty plea to armed robbery and discharging a firearm in connection with robbing a bank. Rejects Tichenor’s argument that the career offender sentencing guideline is unconstitutionally vague, finding that the guidelines are not susceptible to vagueness challenges and the U.S. Sentencing Commission did not exceed its authority by promulgating the “crime of violence” definition.
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Opinions June 12, 2012

June 12, 2012
7th Circuit Court of Appeals
Svetlana Arizanovska v. Wal-Mart Stores, Incorporated
11-3387
U.S. District Court, Southern District of Indiana, Indianapolis Division, Chief Judge Richard L. Young.
Civil. Affirms District Court’s finding of summary judgment against Arizanovska on her claims of discrimination, retaliation and other state-law claims against her employer, Wal-Mart. Holds that Wal-Mart’s suggestion that Arizanovska take an unpaid leave of absence was outlined in company policy and was not an adverse, retaliatory response to her filing a discrimination claim.
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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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