Opinions

Opinions July 18, 2013

July 18, 2013
Indiana Supreme Court
In Re the Guardianship of A.J.A. and L.M.A., Minor Children; J.C. v. J.B. and S.B.
48S02-1305-GU-398
Guardianship. Holds the trial court correctly vacated its original order granting grandparent visitation. The Grandparent Visitation Statute does not provide a means by which the paternal grandmother in this case may seek visitation when her son has murdered the mother of her two grandchildren.
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Opinions July 16, 2013

July 16, 2013
7th Circuit Court of Appeals
Hoosier Environmental Council and Citizens for Appropriate Rural Roads v. United States Army Corps of Engineers and Indiana Department of Transportation
12-3187
Civil/agency action. Affirms the U.S. Court for the Southern District of Indiana’s grant of summary judgment in favor of the Corps of Engineers, holding that the Corps evaluated all of the wetland-protection factors required in its approval of a Clean Water Act permit to construct a section of Interstate 69 about 25 miles south of Bloomington.  

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Opinions July 15, 2013

July 15, 2013
Indiana Court of Appeals
Tuan Chu v. State of Indiana
49A04-1210-CR-495
Criminal. Affirms convictions for three counts of Class D felony evasion of income tax, three counts of Class D felony theft, and one county of Class D felony failure to remit or collect sales tax. Chu appealed on the grounds that the nonpayment penalty of $280,326.62 and his criminal convictions violated double jeopardy principles. The COA stated it was not convinced that the nonpayment penalties were punishments for double jeopardy purposes and it disagreed with Chu’s assertion that the imposition of the nonpayment penalties was conditioned on the commission of a crime.
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Opinions July 12, 2013

July 12, 2013
7th Circuit Court of Appeals
Miguel Gutierrez v. Michael R. Kermon
12-2934
Civil/wrongful arrest, excessive force. Dismisses Indianapolis Metropolitan Police Department officer Michael Kermon’s interlocutory appeal of a denial of summary judgment on the basis of qualified immunity from a wrongful arrest and excessive force lawsuit. The court held that it had no jurisdiction over the interlocutory appeal because Kermon’s argument was dependent on a disputed fact and the court will not reweigh evidence.
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Opinions July 11, 2013

July 11, 2013
7th Circuit Court of Appeals
United States of America v. Danny Harmon
12-1502
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge Jane E. Magnus-Stinson.
Criminal. Affirms convictions of marijuana conspiracy and related offenses and 360-month sentence. A trial continuance did not violate his Sixth Amendment right to a speedy trial and the disclosure of Harmon’s prior drug conviction did not deprive him of a fair trial. The court did not make a mistake in finding Harmon responsible for more than 10,000 kilograms of marijuana.
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Opinions July 10, 2013

July 10, 2013
Indiana Court of Appeals
Wesley Young v. State of Indiana (NFP)
49A02-1209-PC-753
Post conviction. Affirms denial of petition for post-conviction relief.
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Opinions July 9, 2013

July 9, 2013
7th Circuit Court of Appeals
Roger L. Peele v. Clifford Burch, individually and as Portage Police Department Chief, et al.
12-3562
U.S. District Court, Northern District of Indiana, Hammond Division, Magistrate Judge Paul R. Cherry.
Civil. Reverses summary judgment in favor of the city of Portgage and Portage Police Department chief and assistant chief on Peele’s lawsuit that he was transferred out of the detective bureau for talking to a local reporter about the loss of the election by the candidate he supported for mayor. A deposition by a police officer who held the station duty officer position before Peele and the suspicious timing of Peele’s transfer are enough to avoid summary judgment. Remands for further proceedings.
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Opinions July 8, 2013

July 8, 2013
7th Circuit Court of Appeals
Cincinnati Life Insurance Company v. Marjorie Beyrer
12-2365
Civil plenary. Affirms District Court rulings against Marjorie Beyrer, widow of Kevin Beyrer, in a life insurance dispute. The court found no merit on the issues she appealed after she failed to be awarded proceeds from her husband’s life insurance policy that was assigned to a third party. Dismissal of some claims for failing to comply with federal pleading standards and summary judgment in favor of Cincinnati Life on other claims was not an abuse of discretion, the court ruled.
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Opinions July 3, 2013

July 3, 2013
7th Circuit Court of Appeals
United States of America v. Ronald Ritz
11-3320
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge William T. Lawrence.
Civil. Dismisses Ritz’s appeal of the grant of summary judgment in favor of the government that Ritz’s campground is subject to the Safe Drinking Water Act and its regulations. Ritz has waived all of the new arguments he now raises for the first time on appeal by failing to present them to the District Court.
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Opinions July 2, 2013

July 2, 2013
Indiana Court of Appeals
Tequita Ramsey v. Lightning Corporation
49A02-1209-CC-705
Civil Collection. Affirms the trial court’s judgment in decertifying the class. In this case of first impression, the COA noted it could find no logical reason to hold that a trial court may never revoke or rescind an order certifying a class. To do so would mean that once a class action is certified, the class could not be later decertified even if facts and evidence discovered afterward suggests the class should not have been certified in the first place.
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Opinions July 1, 2013

July 1, 2013
Indiana Supreme Court
N.L. v. State of Indiana
47S01-1302-JV-126
Juvenile. Reverses and remands the trial court order placing N.L. on the sex offender registry, holding that the order was neither issued in connection with an evidentiary hearing nor accompanied by findings.
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Opinions June 28, 2013

June 28, 2013
Indiana Supreme Court
Brad W. Passwater v. State of Indiana
48S05-1210-PC-583
Post conviction. Affirms post-conviction court denial of Passwater’s petition for relief. In the decision, the court reconsiders the instructions it approved in Georgopuls v. State, 735 N.E. 2d 1138, 1143 n.3 (Ind. 2000), for juries faced with the option of finding a defendant not responsible by reason of insanity or guilty but mentally ill. The court concluded the instruction provided by the Indiana Pattern Jury Instruction 11.20 is better and approved its use.
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Opinions June 27, 2013

June 27, 2013
Indiana Court of Appeals
Timothy W. Parish v. State of Indiana
64A03-1210-CR-438
Criminal. Finds trial court properly denied Parish’s request for counsel at public expense because he had $130,000 in equity in his house, but the facts and circumstances of the case do not warrant a knowing and intelligent waiver of his right to counsel because the trial court did not advise him of the dangers and disadvantages of self-representation. Remands for a new trial.
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Opinions June 26, 2013

June 26, 2013
7th Circuit Court of Appeals
Michael Alexander v. United States of America
12-2190
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge Sarah Evans Barker.
Civil. Reverses Alexander’s malicious prosecution and intentional infliction of emotional distress lawsuit against the United States under the Federal Tort Claims Act. The complaint for malicious prosecution sets forth enough plausible detail to provide adequate notice to the defendants and survive a 12(b)(6) motion to dismiss. Concludes the IIED claim is timely and adequately states a claim.
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Opinions June 25, 2013

June 25, 2013
Indiana Supreme Court
Loren Hamilton Fry v. State of Indiana
09S00-1205-CR-361
Criminal. Affirms denial of bail for Fry, who is charged with murder. Holds that when a defendant charged with murder or treason seeks bail, the burden is on the state, if it seeks to deny bail, to show by a preponderance of the evidence that the proof is evident or the presumption strong. Chief Justice Dickson concurs to which Justice Rush joins; Rush concurs; Justice Massa concurs in result and dissents with separate opinion; and Justice Rucker dissents with separate opinion in which Massa concurs.
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Opinions June 24, 2013

June 24, 2013
Indiana Court of Appeals
Michael Howard v. Allen County Board of Zoning, Appeals and Alvin Schmucker
02A04-1301-PL-27
Civil plenary. Affirms dismissal of Howard’s petition for judicial review of the decision by the zoning board to grant a use variance for property owned by Schmucker. I.C. 36-7-4-1316 requires dismissal where no materials supporting judicial review of the petitioner’s claims are timely filed and an extension of the filing deadline is not timely requested. Finds the trial court’s determination that it lacked jurisdiction was clearly erroneous, but the statute required dismissal on non-jurisdictional grounds.
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Opinions June 21, 2013

June 21, 2013
Indiana Court of Appeals
Gasser Chair Company, Inc. v. Marlene J. Nordengreen, Horseshoe Hammond, LLC, d/b/a Horseshoe Casino
45A03-1210-CT-435
Civil tort. Affirms summary judgment for Horseshoe Casino and denial of Gasser Chair Co.’s motion on Nordengreen’s claim that she was injured at the casino while using a chair Gasser manufactured. Gasser has not demonstrated Horseshoe had actual knowledge the chair was dangerous. Declines to hold a premises owner’s knowledge of a dangerous condition on its premises cannot be determined without first knowing the dangerous condition was the “sole proximate case” of an injury. Remands for the trial court to resolve the remaining issues raised in Horseshoe’s third-party complaint against Gasser.
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Opinions June 20, 2013

June 20, 2013
Indiana Court of Appeals
Corey L. Grier v. State of Indiana (NFP)
20A05-1212-CR-658
Criminal. Reverses sentence following guilty plea to Class D felony possession of marijuana and remands for the trial court to amend the sentencing order to comply with the plea agreement.
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Opinions June 19, 2013

June 19, 2013
Indiana Court of Appeals
Revas Spencer v. Tiffany Spencer
36A04-1211-PO-605
Protective order. Reverses denial of the agreed order dismissing an order of protection submitted by the Spencers to the trial court. Since the word “shall” appears in the statute regarding the trial court’s actions when the petitioner files for the dismissal of a protection order, the trial court didn’t have the discretion to deny the parties’ request to dismiss the protective order.

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Opinions June 18, 2013

June 18, 2013
7th Circuit Court of Appeals
Robert Yeftich, et al. v. Navistar Inc. and Indianapolis Casting Corp.
12-2964
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge Sarah Evans Barker.
Civil. Affirms dismissal of complaint filed by group of unionized workers alleging breach of collective-bargaining agreement under Section 301 of the Labor Management Relations Act. The complaint lacked enough factual content to plead a plausible claim for breach of the duty of fair representation, which is required to pursue this litigation.
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Opinions June 17, 2013

June 17, 2013
Indiana Court of Appeals
Term. of the Parent-Child Rel. of: C.L.F., D.K.F., & C.S.F. (Minor Children) and M.F. (Father) & C.J.F. (Mother) v. The Indiana Dept. of Child Services (NFP)
45A03-1210-JT-416
Juvenile termination. Affirmed judgment terminating the parental rights of both the mother and father.
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Opinions June 14, 2013

June 14, 2013
7th Circuit Court of Appeals
Jason Findlay v. Jonathan Lendermon
12-3881
Civil/excessive use of force. Reverses District Court denial of summary judgment in favor of Deputy Sheriff Jonathan Lendermon, holding that Findlay has not met a burden of proof showing a violation of a clearly established right when Lendermon grabbed his arm to prevent him from picking up a memory card believed to contain surveillance video of Findlay’s admission of trespassing.
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Opinions June 13, 2013

June 13, 2013
Indiana Court of Appeals
Re: the Name Change of Jane Doe, Petitioner, Mary Doe, a Minor, and Baby Doe, a Minor
49A02-1211-MI-894
Miscellaneous. Affirms denial of mother Jane Doe’s petition to change her and her children’s names without publishing notice of the change based on the evidence in the record and current law. Mother may be able to protect some information from public record by going through Administrative Rule 9, but she did not choose to do so.

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Opinions June 12, 2013

June 12, 2013
Indiana Court of Appeals
John H. Mooney, as Special Administrator of the Estate of Joseph S. Mooney, Deceased v. Anonymous M.D. 4, Anonymous M.D. 5, and Anonymous Hospital
32A04-1208-CT-414
Civil tort. Reverses order dismissing with prejudice Mooney’s proposed complaint for damages in a medical malpractice action. The trial court did not have jurisdiction to dismiss under Trial Rule 41(E), and it abused its discretion when it dismissed the proposed complaint under I.C. 34-18-10-14.
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Opinions June 11, 2013

June 11, 2013
7th Circuit Court of Appeals
Judson Atkinson Candies, Incorporated v. Kenray Associates, Incorporated, Charles A. McGee and Kenneth J. McGee
12-1035, 12-1036
U.S. District Court, Southern District of Indiana, New Albany Division, Magistrate Judge William G. Hussmann Jr.
Civil. Reverses District Court ruling that Judson Atkinson must demonstrate that it had been induced by fraud to enter into the integration clause in a settlement agreement between it and Kenray Associates, as opposed to the agreement as a whole, in order to circumvent the parol evidence rule. Indiana law does not impose such a bright-line rule.

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  1. I'm going to court the beginning of Oct. 2015 to establish visitation and request my daughters visits while she is in jail. I raised my grandchild for the first two and half years. She was born out of wedlock and the father and his adopted mother wantwd her aborted, they went as far as sueing my daughter for abortion money back 5mo. After my grandchild was born. Now because of depression and drug abuse my daughter lost custody 2 and a half years ago. Everyting went wrong in court when i went for custody my lawyer was thrown out and a replacment could only stay 45 min. The judge would not allow a postponement. So the father won. Now he is aleinating me and my daughter. No matter the amount of time spent getting help for my daughter and her doing better he runs her in the ground to the point of suicide because he wants her to be in a relationship with him. It is a sick game of using my grandchild as a pawn to make my daughter suffer for not wanting to be with him. I became the intervener in the case when my daughter first got into trouble. Because of this they gave me her visitation. Im hoping to get it again there is questions of abuse on his part and I want to make sure my grandchild is doing alright. I really dont understand how the parents have rights to walk in and do whatever they want when the refuse to stand up and raise the child at first . Why should it take two and a half years to decide you want to raise your child.The father used me so he could finish college get a job and stop paying support by getting custody. Support he was paying my daughter that I never saw.

  2. Pence said when he ordered the investigation that Indiana residents should be troubled by the allegations after the video went viral. Planned Parenthood has asked the government s top health scientists at the National Institutes of Health to convene a panel of independent experts to study the issues surrounding the little-known branch of medicine.

  3. State Farm is sad and filled with woe Edward Rust is no longer CEO He had knowledge, but wasn’t in the know The Board said it was time for him to go All American Girl starred Margaret Cho The Miami Heat coach is nicknamed Spo I hate to paddle but don’t like to row Edward Rust is no longer CEO The Board said it was time for him to go The word souffler is French for blow I love the rain but dislike the snow Ten tosses for a nickel or a penny a throw State Farm is sad and filled with woe Edward Rust is no longer CEO Bambi’s mom was a fawn who became a doe You can’t line up if you don’t get in a row My car isn’t running, “Give me a tow” He had knowledge but wasn’t in the know The Board said it was time for him to go Plant a seed and water it to make it grow Phases of the tide are ebb and flow If you head isn’t hairy you don’t have a fro You can buff your bald head to make it glow State Farm is sad and filled with woe Edward Rust is no longer CEO I like Mike Tyson more than Riddick Bowe A mug of coffee is a cup of joe Call me brother, don’t call me bro When I sing scat I sound like Al Jarreau State Farm is sad and filled with woe The Board said it was time for him to go A former Tigers pitcher was Lerrin LaGrow Ursula Andress was a Bond girl in Dr. No Brian Benben is married to Madeline Stowe Betsy Ross couldn’t knit but she sure could sew He had knowledge but wasn’t in the know Edward Rust is no longer CEO Grand Funk toured with David Allan Coe I said to Shoeless Joe, “Say it ain’t so” Brandon Lee died during the filming of The Crow In 1992 I didn’t vote for Ross Perot State Farm is sad and filled with woe The Board said it was time for him to go A hare is fast and a tortoise is slow The overhead compartment is for luggage to stow Beware from above but look out below I’m gaining momentum, I’ve got big mo He had knowledge but wasn’t in the know Edward Rust is no longer CEO I’ve travelled far but have miles to go My insurance company thinks I’m their ho I’m not their friend but I am their foe Robin Hood had arrows, a quiver and a bow State Farm has a lame duck CEO He had knowledge, but wasn’t in the know The Board said it was time for him to go State Farm is sad and filled with woe

  4. The ADA acts as a tax upon all for the benefit of a few. And, most importantly, the many have no individual say in whether they pay the tax. Those with handicaps suffered in military service should get a pass, but those who are handicapped by accident or birth do NOT deserve that pass. The drivel about "equal access" is spurious because the handicapped HAVE equal access, they just can't effectively use it. That is their problem, not society's. The burden to remediate should be that of those who seek the benefit of some social, constructional, or dimensional change, NOT society generally. Everybody wants to socialize the costs and concentrate the benefits of government intrusion so that they benefit and largely avoid the costs. This simply maintains the constant push to the slop trough, and explains, in part, why the nation is 20 trillion dollars in the hole.

  5. Hey 2 psychs is never enough, since it is statistically unlikely that three will ever agree on anything! New study admits this pseudo science is about as scientifically valid as astrology ... done by via fortune cookie ....John Ioannidis, professor of health research and policy at Stanford University, said the study was impressive and that its results had been eagerly awaited by the scientific community. “Sadly, the picture it paints - a 64% failure rate even among papers published in the best journals in the field - is not very nice about the current status of psychological science in general, and for fields like social psychology it is just devastating,” he said. http://www.theguardian.com/science/2015/aug/27/study-delivers-bleak-verdict-on-validity-of-psychology-experiment-results

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