Opinions

Opinions May 21, 2012

May 21, 2012
7th Circuit Court of Appeals
Kristi J. Cortezano v. Salin Bank & Trust Company

United States District Court, Southern District of Indiana, Indianapolis Division, Judge Sarah Evans Barker.
11-1631
Civil. Affirms District court’s grant of summary judgment in favor of Salin Bank & Trust Company, holding the bank did not violate Cortezano’s rights by firing her due to her husband’s immigration status. Remands to the District Court to strike from the record the names of Cortezano’s three children, as the District Court had not previously ruled on that motion.
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Opinions May 18, 2012

May 18, 2012
Indiana Court of Appeals
In Re the Adoption of S.J., R.W. v. G.C. and J.C.
04A03-1110-AD-449
Adoption. Dismisses appeal from R.W., the biological father of S.J., holding than an order that states his consent is not required for the petition to proceed neither grants nor denies S.J.’s adoption and is not a final, appealable action.
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Opinions May 17, 2012

May 17, 2012
Indiana Court of Appeals
Heriberto Suarez v. State of Indiana
02A05-1106-PC-325
Post conviction. Affirms denial of petition for post-conviction relief. The court did not err in denying his claim that he received ineffective assistance of trial counsel.
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Opinions May 16, 2012

May 16, 2012
Indiana Court of Appeals
Robert A. Turner v. State of Indiana (NFP)
62A01-1111-CR-514
Criminal. Affirms imposition of public defender fee.
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Opinions May 14, 2012

May 14, 2012
Indiana Court of Appeals
Dana L. Lewis, Jr. v. State of Indiana
40A01-1106-CR-276
Criminal. Reverses denial of Lewis’ motion to suppress statements he made during a police interview regarding an alleged sex crime. Lewis’ question, “Can I get a lawyer?” constituted an unequivocal invocation of his Fifth Amendment right to counsel.
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Opinions May 11, 2012

May 11, 2012
7th Circuit Court of Appeals
BMD Contractors Inc. v. Fidelity and Deposit Company of Maryland
11-1345
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge Tanya Walton Pratt.
Civil. Affirms summary judgment for Fidelity and Deposit Company of Maryland. The Industrial Power/BMD Contractors subcontract expressly provides that Industrial Power’s receipt of payment is a condition precedent to its obligation to pay BMD. Because Industrial Power was never obligated to pay BMD in the first place, BMD may not recover against Fidelity on the payment bond. Also holds that pay-if-paid clauses are not void under Indiana public policy.
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Opinions May 10, 2012

May 10, 2012
Indiana Court of Appeals
Allison Riggle v. State of Indiana
49A05-1109-CR-472
Criminal. Reverses conviction of Class A misdemeanor possession of marijuana. The traffic stop was invalid because Riggle did not commit a traffic violation. Remands with instructions to vacate her conviction.
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Opinions May 9, 2012

May 9, 2012
Indiana Court of Appeals
Ashanti Clemons v. State of Indiana
49A02-1108-PC-737
Post conviction. Affirms denial of amended petition for post-conviction relief. Clemons was not denied effective assistance of his trial and appellate counsel.
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Opinions May 7, 2012

May 7, 2012
Indiana Court of Appeals
Luis Ramos v. State of Indiana (NFP)

49A04-1103-CR-138
Criminal. Affirms sentences for felony murder and Class A misdemeanor possession of a handgun without a license, but remands for correction of sentence, holding sentences were to be served consecutively, not concurrently.
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Opinions May 3, 2012

May 3, 2012
Indiana Court of Appeals
M.O. v. Indiana Dept. of Insurance, Indiana Patient's Compensation Fund
53A05-1112-PL-682
Civil plenary. Affirms conclusion that Indiana Code 24-4.6-1-101 (1993), with its 8 percent interest rate, applies to payments to M.O, a successful malpractice claimant, and that interest began to accrue on the 15th day of the month following the end of the claim period in which the claim was filed with the Patient’s Compensation Fund.
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Opinions May 2, 2012

May 2, 2012
Indiana Court of Appeals
Andrew C. Kesling, individually and as Trustee of the Andrew C. Kesling Trust v. Peter C. Kesling, et al.
45A03-1106-PL-271
Civil plenary. Reverses judgment in favor of father Peter Kesling that found he was entitled to rescission of stock purchase agreements entered into on June 25, 2004. Finds that Andrew Kesling’s trust declaration did not deprive him status as a shareholder and that he was a shareholder when he entered into the purchase agreements with Peter Kesling. Remands for the court to rule on the claims raised by Andrew Kesling’s siblings.
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Opinions May 1, 2012

May 1, 2012
7th Circuit Court of Appeals
Securities and Exchange Commission v. First Choice Management Services Inc. et al.; SonCo Holdings LLC v. Joseph D. Bradley, receiver, and ALCO Oil & Gas Co. LLC
11-1702
U.S. District Court, Northern District of Indiana, South Bend Division, Judge Robert L. Miller Jr.
Civil. Affirms order insofar as it determines that SonCo willfully violated the agreed order, but vacates the $600,000 sanction and remands. On remand, the judge can: reimpose the sanction he imposed, upon demonstrating that it is a compensatory remedy for a civil contempt after all; impose a different or perhaps no sanction, whether for civil contempt or for misconduct not characterized as contempt; or proceeding under the rules governing criminal contempts.
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Opinions April 30, 2012

April 30, 2012
Indiana Court of Appeals
D.A. v. State of Indiana
49A02-1108-JV-692
Juvenile. Affirms juvenile court’s decision to order inpatient treatment for D.A. who entered into a plea agreement admitting to Class B misdemeanor battery if committed by an adult and “conditionally” agreed to admit to Class C felony child molesting, if committed by an adult. D.A.’s placement is consistent with the goals for his rehabilitation. The appellate judges do not have jurisdiction to resolve the issue of whether the trial court erred in accepting his conditional plea to the child molesting charge because there was no evidence of D.A.’s intent with regard to the molesting. The conditional plea is the equivalent to a withheld judgment so there is no final judgment or appealable final order from which to appeal.
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Opinions April 27, 2012

April 27, 2012
Indiana Court of Appeals
In the Matter of V.C., Child Alleged to be in Need of Services v. Indiana Dept. of Child Services
79A02-1112-JC-1172
Juvenile. Affirms determination that V.C. is a child in need of services. The juvenile court did not erroneously deny father’s request to issue a subpoena to the maternal aunt. Father also failed to demonstrate good cause for granting his request for a continuance, so the juvenile court acted within its discretion in denying his request.
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Opinions April 26, 2012

April 26, 2012
Indiana Court of Appeals
Christopher King v. Karen Patrick (NFP)
49A02-1105-PL-444
Civil plenary. Reverses grant of partial summary judgment against Christopher King on Karen Patrick’s complaint against him alleging breach of contract. Remands for further proceedings.
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Opinions April 25, 2012

April 25, 2012
Indiana Court of Appeals
John Ludack v. State of Indiana
49A02-1109-CR-930
Criminal. Affirms convictions of and aggregate 130-year sentence for two counts of Class A felony child molesting and being a habitual offender. Defense counsel, by first asking the detective whether Ludack had admitted the allegations of child molestation during the interview, opened the door to the detective’s testimony that Ludack neither admitted nor denied the allegations of child molesting and just asked to stop speaking. Ludack also failed to prove his sentence is inappropriate.
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Opinions April 24, 2012

April 24, 2012
Indiana Court of Appeals
George Clements v. Kimberly Hall and Stanley Harmon
06A04-1106-MI-282
Miscellaneous. Reverses trial court’s award of summary judgment for Kimberly Hall and Stanley Harmon, holding their attorney failed to notify George Clements and his attorney that a motion had been filed. Remands for further proceedings consistent with its opinion.
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Opinions April 23, 2012

April 23, 2012
Indiana Court of Appeals
Richard Leggs v. State of Indiana
49A02-1105-CR-522
Criminal. Affirms convictions of and sentences for one count of Class B felony criminal confinement and one count each of Class C felony intimidation, Class C felony criminal recklessness, and Class A misdemeanor resisting law enforcement. Reverses one count of Class B felony criminal confinement, due to the continuing crime doctrine and remands for resentencing.
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Opinions April 20, 2012

April 20, 2012
Indiana Court of Appeals
Andre M. Perry v. State of Indiana (NFP)
45A05-1108-CR-397
Criminal. Affirms convictions of murder, Class A felony attempted murder and Class D felony residential entry.
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Opinions April 19, 2012

April 19, 2012
Indiana Court of Appeals
Anthony Hogan v. State of Indiana
20A03-1103-PC-158
Post conviction. Affirms denial of petition for post-conviction relief. Hogan failed to show ineffective assistance of trial and appellate counsel.
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Opinions April 18, 2012

April 18, 2012
Indiana Court of Appeals
Todd Walters and Matenia Walters v. Aaron Austin and Herman & Goetz, Inc.
20A04-1106-CT-342
Civil tort. Dismisses the Walterses’ appeal of the judgment on a jury verdict in favor of Austin and his employer on the Walterses’ complaint for damages arising from a multi-vehicle accident. The appellate court does not have jurisdiction. Judge Darden dissents.
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Opinions April 17, 2012

April 17, 2012
7th Circuit Court of Appeals
United States of America v. Kimani Lanier Fleming
11-1404
U.S. District Court, Northern District of Indiana, South Bend Division, Judge Robert L. Miller Jr.
Criminal. Affirms Fleming’s revised sentence of 480 months imprisonment for convictions of several serious drug and firearm charges. There was no clear error in the District Court’s decision to include routine drug purchases as relevant conduct when it computed his revised sentencing guideline range. Denies Fleming’s implicit request for an expanded certificate of appealability. 
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Opinions April 16, 2012

April 16, 2012
Indiana Court of Appeals
Whiskey Barrel Planters Co., Inc., n/k/a Diggs Enterprises, Inc., Robinson Family Enterprises, LLC, et al. v. American GardenWorks, Inc., and Millennium Real Estate Investment, LLC
04A03-1011-PL-582
Civil plenary. Reverses determination in favor of American GardenWorks and Millennium Real Estate on AGW and MRE’s fraud claims against Whiskey Barrel and judgment for $409,611.24 and attorney fees and costs. The trial court erred in denying Whiskey Barrel’s motion for partial summary judgment on the issue of whether AGW was entitled to loans made to Whiskey Barrel shareholders and on the issue of whether AGW was entitled to 2008 season football tickets to Purdue that were purchased with Whiskey Barrel funds. The trial court erred in determining that AGW acquired the previous owner’s personal property under the terms of the purchase agreement. Remands for the trial court to determine the amount of attorney fees – if any – that are recoverable.
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Opinions April 13, 2012

April 13, 2012
The 7th Circuit Court of Appeals and Indiana appellate courts posted no opinions at IL deadline.
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Opinions April 12, 2012

April 12, 2012
7th Circuit Court of Appeals
United States of America v. Jaymie T. Mount
11-2616
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge Jane E. Magnus-Stinson.
Criminal. Remands for resentencing after the District Court denied the government’s motion for Mount to receive an additional one-level reduction following his guilty plea, citing Mount’s flight from charges. The additional reduction is mandatory once the government determines that the criteria spelled out in U.S.S.G. Section 3E1.1(b) are satisfied and it makes the necessary motion.
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  1. I expressed my thought in the title, long as it was. I am shocked that there is ever immunity from accountability for ANY Government agency. That appears to violate every principle in the US Constitution, which exists to limit Government power and to ensure Government accountability. I don't know how many cases of legitimate child abuse exist, but in the few cases in which I knew the people involved, in every example an anonymous caller used DCS as their personal weapon to strike at innocent people over trivial disagreements that had no connection with any facts. Given that the system is vulnerable to abuse, and given the extreme harm any action by DCS causes to families, I would assume any degree of failure to comply with the smallest infraction of personal rights would result in mandatory review. Even one day of parent-child separation in the absence of reasonable cause for a felony arrest should result in severe penalties to those involved in the action. It appears to me, that like all bureaucracies, DCS is prone to interpret every case as legitimate. This is not an accusation against DCS. It is a statement about the nature of bureaucracies, and the need for ADDED scrutiny of all bureaucratic actions. Frankly, I question the constitutionality of bureaucracies in general, because their power is delegated, and therefore unaccountable. No Government action can be unaccountable if we want to avoid its eventual degeneration into irrelevance and lawlessness, and the law of the jungle. Our Constitution is the source of all Government power, and it is the contract that legitimizes all Government power. To the extent that its various protections against intrusion are set aside, so is the power afforded by that contract. Eventually overstepping the limits of power eliminates that power, as a law of nature. Even total tyranny eventually crumbles to nothing.

  2. Being dedicated to a genre keeps it alive until the masses catch up to the "trend." Kent and Bill are keepin' it LIVE!! Thank you gentlemen..you know your JAZZ.

  3. Hemp has very little THC which is needed to kill cancer cells! Growing cannabis plants for THC inside a hemp field will not work...where is the fear? From not really knowing about Cannabis and Hemp or just not listening to the people teaching you through testimonies and packets of info over the last few years! Wake up Hoosier law makers!

  4. If our State Government would sue for their rights to grow HEMP like Kentucky did we would not have these issues. AND for your INFORMATION many medical items are also made from HEMP. FOOD, FUEL,FIBER,TEXTILES and MEDICINE are all uses for this plant. South Bend was built on Hemp. Our states antiquated fear of cannabis is embarrassing on the world stage. We really need to lead the way rather than follow. Some day.. we will have freedom in Indiana. And I for one will continue to educate the good folks of this state to the beauty and wonder of this magnificent plant.

  5. Put aside all the marijuana concerns, we are talking about food and fiber uses here. The federal impediments to hemp cultivation are totally ridiculous. Preposterous. Biggest hemp cultivators are China and Europe. We get most of ours from Canada. Hemp is as versatile as any crop ever including corn and soy. It's good the governor laid the way for this, regrettable the buffoons in DC stand in the way. A statutory relic of the failed "war on drugs"

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