Opinions

Opinions Sept. 10, 2014

September 10, 2014
Indiana Supreme Court
Barbara J. Pohl v. Michael G. Pohl
32S04-1404-DR-245
Domestic relation. Reverses trial court and remands with instructions to apply the incapacity maintenance statute’s “substantial and continuing change in circumstances” standard to the evidence presented at the modification hearing. Any maintenance provision in a settlement agreement, regardless of its grounds, is modifiable only if the agreement so provides. The agreement in this matter contains such a provision.
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Opinions Sept. 9, 2014

September 9, 2014
Indiana Court of Appeals
Robert O. Hedrick v. Angela R. Gilbert
47A01-1401-DR-1
Domestic relation. Affirmed in part, reversed in part. Affirms denial of Hedrick’s motion to modify support for post-secondary educational expenses and affirms order of contempt and $500 fine issued to Hedrick for failing to abide by prior court rulings. Reverses the award to Gilbert of $1,000 in attorney fees as part of the contempt order, ruling that the trial court did not make findings that Hedrick’s petition to modify was frivolous, unreasonable or groundless.
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Opinions Sept. 8, 2014

September 8, 2014
Indiana Court of Appeals
Citizens Action Coalition of Indiana, Inc., Save the Valley, Inc., Sierra Club, and Valley Watch, Inc. v. Duke Energy Indiana, Inc., Indiana Office of Utility Consumer Counselor
93A02-1305-EX-394
Agency action. Remands to the Indiana Utility Regulatory Commission its order approving Duke’s request to include power plant construction costs of the Edwardsport coal-gasification plant from Oct. 1, 2011, to March 31, 2012, in a rate adjustment rider. Remands for findings as to whether a delay was chargeable to Duke and, if so, what impact the delay had on Duke’s customers’ rates. Also remands for a clear statement of the policy and evidentiary considerations underlying IURC’s determination that 50 percent of the plant was deemed in-service.
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Opinions Sept. 5, 2014

September 5, 2014
7th Circuit Court of Appeals
Marilyn Rae Baskin v. Penny Bogan
14-2386
Midori Fujii v. Commissioner of the Indiana State Department of Health
14-2387
Pamela Lee v. Brian Abbott
14-2388
U.S. District Court, Southern District of Indiana, Indianapolis Division, Chief Judge Richard Young
Civil. Affirms District Court judgment invalidating and enjoining Indiana and Wisconsin prohibitions on same-sex marriage. The 7th Circuit consolidated the three same-sex marriage cases from Indiana into one opinion with the single case from Wisconsin, Wolf et al. v. Walker, et al., 14:2526. The court confined its ruling to the 14th Amendment’s Equal Protection Clause and did not address the plaintiffs’ due process arguments. Rejects Indiana’s responsible procreation argument, finding Indiana’s prohibition on same-sex marriage discriminates against gays and lesbians.
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Opinions Sept. 4, 2014

September 4, 2014
Indiana Supreme Court
TP Orthodontics, Inc., Christopher Kesling, DDS, MS, Adam Kesling, and Emily Kesling, et al. v. Andrew Kesling, Individually and as Trustee of the Andrew C. Kesling Trust Dated March 28, 2001 et al.
46S03-1405-MI-337
Miscellaneous. Finds the trial court abused its discretion in ordering disclosure of the full special litigation committee report, as portions of it containing privileged information cannot be disclosed to the sibling shareholders. Remands to the trial court to conduct an in camera review of the full report to determine whether the designate material is in fact privileged.
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Opinions Sept. 3, 2014

September 3, 2014
Indiana Supreme Court
Natural Resources Defense Council v. Poet Biorefining- North Manchester, LLC, Poet Biorefining- Cloverdale, LLC, Central Indiana Ethanol, Inc., et al.
49S02-1405-MI-313
Miscellaneous. IDEM was not required to formally amend Indiana’s state implementation plan with the EPA to effectuate its change in how it interprets the regulatory phrase “chemical process plant.” IDEM’s interpretation to exclude fuel ethanol plants under the definition of “chemical process plant” is legally permissible.
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Opinions Sept. 2, 2014

September 2, 2014
7th Circuit Court of Appeals
James M. Sweeney, et al. v. Gov. Michael Pence, et al.
13-1264
U.S. District Court, Northern District of Indiana, Hammond Division, Chief Judge Philip P. Simon.
Civil. Affirms dismissal of union’s lawsuit arguing the Right to Work Act violates union members’ rights under the U.S. Constitution and is preempted by federal labor legislation. The legislation is not preempted by the scheme of federal labor law and does not violate any constitutional rights. Judge Tinder for the majority writes that the controversy of the law needs to be addressed legislatively, not through the courts. Chief Judge Wood dissents.
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Opinions Aug. 29, 2014

August 29, 2014
Indiana Court of Appeals
C.H. v. State of Indiana
49A02-1310-JV-904
Juvenile. Affirms officer’s stop of C.H. because he was believed to be a suspect in a crime and the order of restitution because C.H. never objected to the order he pay restitution. Reverses adjudication of what would be Class B misdemeanor unlawful entry of a motor vehicle because the same evidence was used to adjudicate C.H. of that charge and what would be Class A misdemeanor trespass. Remands for further proceedings.
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Opinions Aug. 28, 2014

August 28, 2014
Indiana Court of Appeals
Nightingale Home Healthcare, Inc. v. Carey Helmuth and Physiocare Home Healthcare, LLC
29A04-1403-PL-121
Civil plenary. Affirms summary judgment in favor of Helmuth and Physiocare Home Healthcare LLC, in which the trial court concluded that Helmuth’s 10-day break in employment with Nightingale served as the starting point of his limited non-competition and non-disclosure agreement.
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Opinions Aug. 27, 2014

August 27, 2014
7th Circuit Court of Appeals
Kenneth Owen Scrogham v. Carolyn W. Colvin, acting commissioner of Social Security
13-3601
U.S. District Court, Southern District of Indiana, New Albany Division, Judge Tanya Walton Pratt.
Civil. Reverses denial of application for disability benefits and remands for further proceedings. The administrative law judge’s methodology was flawed in several respects. Three logical errors – overstating the significance of Scrogham’s daily activities, overreliance on his rehabilitative efforts as proof of his fitness for full-time work, and misinterpreting the significance of his extensive treatment – had a material effect on the ALJ’s credibility and residual functional capacity assessments.
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Opinions Aug. 26, 2014

August 26, 2014
7th Circuit Court of Appeals
Roy Smith v. Richard Brown
12-3731
U.S. District Court, Northern District of Indiana, South Bend Division.
Judge James T. Moody
Criminal. Affirms the denial of Smith’s habeas petition. Finds although Smith’s counsel appeared to be particularly deficient, Smith failed to demonstrate how his lawyer’s substandard effort prejudiced his case since there was overwhelming evidence against him.

 
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Opinions Aug. 25, 2014

August 25, 2014
Indiana Supreme Court
Indiana Department of State Revenue v. Caterpillar, Inc.
49S10-1402-TA-79
Tax. Reverses judgment of the Indiana Tax Court in favor of Caterpillar, holding the company may not deduct foreign-source dividend income when calculating net operating losses based on plain statutory meaning. Caterpillar also did not meet its burden to prove the conclusion violated the Foreign Commerce Clause. Remands to the Tax Court with instructions to grant summary judgment in favor of the Department of Revenue.
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Opinions Aug. 22, 2014

August 22, 2014
Indiana Tax Court
Indianapolis Racquet Club, Inc. v. Marion County Assessor
49T10-1201-TA-1
Property tax. Affirms Indiana Board of Tax Review finding that Indianapolis Racquet Club Inc. failed to establish a prima facie case that its 2002 assessments were excessive or that they were not uniform and equal.
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Opinions Aug. 21, 2014

August 21, 2014
Indiana Court of Appeals
James S. Littrell v. State of Indiana
79A02-1401-CR-24
Criminal.  Affirms conviction of Class B felony possession of cocaine. Finds Littrell’s right to a fast and speedy trial was not violated, the evidence is sufficient to support his conviction, and his sentence is appropriate. Remands for the sole purpose of correcting a typographical error in the guilty plea and sentencing orders.
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Opinions Aug. 20, 2014

August 20, 2014
Indiana Court of Appeals
Goodrich Quality Theaters, Inc. and Roncelli, Inc. v. Fostcorp Heating and Cooling, Inc., Wilson Iron Works, Inc., Johnson Carpet, Inc., d/b/a Johnson Commercial Interiors
64A03-1308-PL-318
Civil plenary. Affirms ruling in favor of Fostcorp Heating and Cooling and other appellees on various breach of contract claims and foreclosure of mechanic’s liens stemming from the construction of a movie theatre. Roncelli’s appeal was timely filed and the judgments are supported by the findings. It was an abuse of discretion for the trial court to award attorney fees, so reverses those fees in favor of the appellees.
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Opinions Aug. 19, 2014

August 19, 2014
Indiana Court of Appeals
In the Matter of the Adoption of M.H., W.M. & S.K. v. N.B. & R.B.
82A01-1310-AD-449
Adoption.  Affirms order denying W.M. and S.K.’s petition for adoption of M.H. and granting the petition of adoption filed by R.B. and N.B. The appellants did not overcome the presumption that the judge acted impartially when he ruled in favor of N.B. and R.B. The judge received an email from a former fraternity brother in favor of the adoptive family, but he refused to recuse himself in the case because he said he would not consider the person’s argument, stopped reading the email quickly, and had not recently socialized or interacted with the fraternity brother. Finds evidence supports adoption by N.B. and R.B. in the best interests of the child.
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Opinions Aug. 18, 2014

August 18, 2014
Indiana Court of Appeals
Linda D. McIntire, and those similarly situated v. Franklin Township Community School Corporation
49A02-1401-PL-2
Civil plenary. Affirms summary judgment in favor of the school corporation on McIntire’s lawsuit challenging certain fees charged to students in high school. The trial court erred in concluding her claim was subject to the notice requirements of the Indiana Tort Claims Act, but affirms because McIntire may not maintain a claim for monetary damages under Article I, Section 8 of the Indiana Constitution.
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Opinions Aug. 15, 2014

August 15, 2014
7th Circuit Court of Appeals
United States of America v. Randall Ray Fletcher Jr.
12-3104
U.S. District Court, Northern District of Indiana, Hammond Division. Judge Joseph S. Van Bokkelen.
Criminal. Affirms 30-year sentence in prison plus a lifetime of supervised release following a guilty plea to five counts involving child pornography that occurred over a seven-year period. Because his crimes spanned a range of years during which the guidelines for child pornography offenses underwent significant changes, his sentencing posed complex calculations and raised potential constitutional problems. Any errors the court made in calculating the guidelines sentence for Fletcher were harmless.
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Opinions Aug. 14, 2014

August 14, 2014
7th Circuit Court of Appeals
Elliott D. Levin, as trustee in bankruptcy for Irwin Financial Corp. v. William I. Miller, et al.
12-3474
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge Sarah Evans Barker.
Civil. Affirms dismissal with respects to counts 1, 2, 4 and 5 that claim bank managers violated their fiduciary duties to Irwin because those claims are now owned by the FDIC.  Vacates dismissal of counts 3 – that managers allowed Irwin to pay dividends in amounts that left it short of capital - and 7 – that two of the managers breach their duties of care and loyalty – and and remands for further proceedings because those claims are categorized as direct claims that must be pursued by the bank, not the FDIC. Judge Hamilton concurs in result.
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Opinions Aug. 13, 2014

August 13, 2014
Indiana Supreme Court
Joshua Gomillia v. State of Indiana
49S02-1408-CR-521
Criminal. Affirms total executed sentence of 40 years imposed following a plea agreement to one count of Class A felony criminal deviate conduct and one count of Class B felony robbery. The nature and circumstances of the crime included the trial court’s discussion of the leadership role Gomillia played in the commission of the offenses, as well as the terror the victim suffered. Both are appropriate reasons justifying a sentence greater than the advisory term.
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Opinions Aug.12, 2014

August 12, 2014
Indiana Court of Appeals
In re the Termination of the Parent-Child Relationship of C.A., L.A., and M.A. (Minor Children) and B.A. (Mother) and J.A. (Father) v. The Indiana Department of Child Services
55A04-1401-JT-37
Juvenile. Affirms termination of parental rights for mother and father to their three minor children following father’s conviction of Class B felony dealing methamphetamine and mother’s conviction of Class D felony neglect of a dependent. While mother neither received nor signed a case plan negotiated with the Department of Child Services, the record shows mother didn’t lack knowledge of what she needed to do to get her children back, but rather she didn’t participate. Evidence also was sufficient to support termination of mother’s and father’s parental rights.
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Opinions Aug. 11, 2014

August 11, 2014
Indiana Court of Appeals
Dwight Hayes v. State of Indiana
49A04-1312-CR-619
Criminal. Affirms conviction for Class A misdemeanor pointing a firearm. Finds the trial court properly rejected Hayes’ proposed jury instructions based on Indiana’s stand-your-ground law because there was no evidence that his property was being attacked when he pointed two handguns at a woman trying to serve him with legal documents.
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Opinions Aug. 8, 2014

August 8, 2014
Indiana Court of Appeals
Geico Insurance Company, as subrogee of Ralph Heitkamp v. Dianna Graham
49A02-1310-CT-898
Civil tort. Affirms order setting aside summary judgment in favor of Geico on grounds that its claim in Marion Superior Court is barred by the doctrine of res judicata because it is derivative of a judgment in St. Joseph County in favor of Graham. 
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Opinions Aug. 7, 2014

August 7, 2014
Indiana Tax Court
Howard County Assessor v. Kokomo Mall, LLC
49T10-1109-TA-56
Tax. Affirms the final determination of the Indiana Board of Tax Review that reduced Kokomo Mall LLC’s commercial property assessments for the 2007, 2008 and 2009 tax years. Court declines to reweigh the evidence presented to the board and rejects the assessor’s claim that the mere presentation of a USPAP appraisal establishes a prima facie case.
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Opinions Aug. 6, 2014

August 6, 2014
Indiana Court of Appeals
Kevin Davis v. State of Indiana
49A05-1310-CR-523
Criminal. Affirms conviction of Class A felony robbery resulting in serious bodily injury. L.H.’s statements to police identifying Davis as participating in the beating and robbery were properly admitted, the trial court did not err when it determined two witnesses had made themselves unavailable and therefore allowed their depositions to be admitted into evidence at trial, and there is sufficient evidence supporting the conviction.
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  1. Yes diversity is so very important. With justice Rucker off ... the court is too white. Still too male. No Hispanic justice. No LGBT justice. And there are other checkboxes missing as well. This will not do. I say hold the seat until a physically handicapped Black Lesbian of Hispanic heritage and eastern religious creed with bipolar issues can be located. Perhaps an international search, with a preference for third world candidates, is indicated. A non English speaker would surely increase our diversity quotient!!!

  2. First, I want to thank Justice Rucker for his many years of public service, not just at the appellate court level for over 25 years, but also when he served the people of Lake County as a Deputy Prosecutor, City Attorney for Gary, IN, and in private practice in a smaller, highly diverse community with a history of serious economic challenges, ethnic tensions, and recently publicized but apparently long-standing environmental health risks to some of its poorest residents. Congratulations for having the dedication & courage to practice law in areas many in our state might have considered too dangerous or too poor at different points in time. It was also courageous to step into a prominent and highly visible position of public service & respect in the early 1990's, remaining in a position that left you open to state-wide public scrutiny (without any glitches) for over 25 years. Yes, Hoosiers of all backgrounds can take pride in your many years of public service. But people of color who watched your ascent to the highest levels of state government no doubt felt even more as you transcended some real & perhaps some perceived social, economic, academic and professional barriers. You were living proof that, with hard work, dedication & a spirit of public service, a person who shared their same skin tone or came from the same county they grew up in could achieve great success. At the same time, perhaps unknowingly, you helped fellow members of the judiciary, court staff, litigants and the public better understand that differences that are only skin-deep neither define nor limit a person's character, abilities or prospects in life. You also helped others appreciate that people of different races & backgrounds can live and work together peacefully & productively for the greater good of all. Those are truths that didn't have to be written down in court opinions. Anyone paying attention could see that truth lived out every day you devoted to public service. I believe you have been a "trailblazer" in Indiana's legal community and its judiciary. I also embrace your belief that society's needs can be better served when people in positions of governmental power reflect the many complexions of the population that they serve. Whether through greater understanding across the existing racial spectrum or through the removal of some real and some perceived color-based, hope-crushing barriers to life opportunities & success, movement toward a more reflective representation of the population being governed will lead to greater and uninterrupted respect for laws designed to protect all peoples' rights to life, liberty & the pursuit of happiness. Thanks again for a job well-done & for the inevitable positive impact your service has had - and will continue to have - on countless Hoosiers of all backgrounds & colors.

  3. Diversity is important, but with some limitations. For instance, diversity of experience is a great thing that can be very helpful in certain jobs or roles. Diversity of skin color is never important, ever, under any circumstance. To think that skin color changes one single thing about a person is patently racist and offensive. Likewise, diversity of values is useless. Some values are better than others. In the case of a supreme court justice, I actually think diversity is unimportant. The justices are not to impose their own beliefs on rulings, but need to apply the law to the facts in an objective manner.

  4. Have been seeing this wonderful physician for a few years and was one of his patients who told him about what we were being told at CVS. Multiple ones. This was a witch hunt and they shold be ashamed of how patients were treated. Most of all, CVS should be ashamed for what they put this physician through. So thankful he fought back. His office is no "pill mill'. He does drug testing multiple times a year and sees patients a minimum of four times a year.

  5. Brian W, I fear I have not been sufficiently entertaining to bring you back. Here is a real laugh track that just might do it. When one is grabbed by the scruff of his worldview and made to choose between his Confession and his profession ... it is a not a hard choice, given the Confession affects eternity. But then comes the hardship in this world. Imagine how often I hear taunts like yours ... "what, you could not even pass character and fitness after they let you sit and pass their bar exam ... dude, there must really be something wrong with you!" Even one of the Bishop's foremost courtiers said that, when explaining why the RCC refused to stand with me. You want entertaining? How about watching your personal economy crash while you have a wife and five kids to clothe and feed. And you can't because you cannot work, because those demanding you cast off your Confession to be allowed into "their" profession have all the control. And you know that they are wrong, dead wrong, and that even the professional code itself allows your Faithful stand, to wit: "A lawyer may refuse to comply with an obligation imposed by law upon a good faith belief that no valid obligation exists. The provisions of Rule 1.2(d) concerning a good faith challenge to the validity, scope, meaning or application of the law apply to challenges of legal regulation of the practice of law." YET YOU ARE A NONPERSON before the BLE, and will not be heard on your rights or their duties to the law -- you are under tyranny, not law. And so they win in this world, you lose, and you lose even your belief in the rule of law, and demoralization joins poverty, and very troubling thoughts impeaching self worth rush in to fill the void where your career once lived. Thoughts you did not think possible. You find yourself a failure ... in your profession, in your support of your family, in the mirror. And there is little to keep hope alive, because tyranny rules so firmly and none, not the church, not the NGO's, none truly give a damn. Not even a new court, who pay such lip service to justice and ancient role models. You want entertainment? Well if you are on the side of the courtiers running the system that has crushed me, as I suspect you are, then Orwell must be a real riot: "There will be no curiosity, no enjoyment of the process of life. All competing pleasures will be destroyed. But always — do not forget this, Winston — always there will be the intoxication of power, constantly increasing and constantly growing subtler. Always, at every moment, there will be the thrill of victory, the sensation of trampling on an enemy who is helpless. If you want a picture of the future, imagine a boot stamping on a human face — forever." I never thought they would win, I always thought that at the end of the day the rule of law would prevail. Yes, the rule of man's law. Instead power prevailed, so many rules broken by the system to break me. It took years, but, finally, the end that Dr Bowman predicted is upon me, the end that she advised the BLE to take to break me. Ironically, that is the one thing in her far left of center report that the BLE (after stamping, in red ink, on Jan 22) is uninterested in, as that the BLE and ADA office that used the federal statute as a sword now refuses to even dialogue on her dire prediction as to my fate. "C'est la vie" Entertaining enough for you, status quo defender?

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