Opinions

Opinions March 27, 2012

March 27, 2012
Indiana Court of Appeals
Lorraine (Carpenter) Miller v. Karl Carpenter
29A02-1107-DR-663
Domestic relation. Reverses the trial court’s grant of joint legal custody to father, holding the evidence does not support modification of custody. Rejects the mother’s argument that the court made a de facto modification of physical custody, holding the court merely modified parenting time, and holds the trial court did not abuse its discretion in reducing the father’s child support obligations.
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Opinions March 26, 2012

March 26, 2012
Indiana Court of Appeals
Lavern Ceaser v. State of Indiana
49A02-1106-CR-580
Criminal. Affirms trial court’s denial of Ceaser’s motion to dismiss, holding that her prior conviction for battering the same child in the same manner similar to the underlying incident was admissible under the intent and lack of accident or mistake exceptions to Indiana Evidence Rule 404(b). Further holds evidence at trial was sufficient to rebut her claim of parental privilege.
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Opinions March 23, 2012

March 23, 2012
Indiana Supreme Court
Troy R. Smith v. State of Indiana
35S02-1106-CR-369
Criminal. Affirms trial court’s judgment to revoke probation for Troy Smith on grounds that he failed to pay weekly child support as a condition of his probation. Justices disagreed with Smith’s appellate argument that state failed to carry its burden of proof that his failure to pay was reckless, knowing or intentional.
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Opinions March 22, 2012

March 22, 2012
Indiana Supreme Court
Sheila Perdue, et al. v. Michael A. Gargano, et al.
49S02-1107-PL-437
Civil plenary. Reverses in part Marion Superior Judge David Dreyer’s ruling on challenge to Indiana Family and Social Services Administration’s automated system of processing claims for Medicaid, food stamps, and temporary assistance. Holds that the FSSA’s denial notices are insufficiently explanatory but that the agency may deny an application when that person fails to cooperate in the eligibility determination process. Affirms in part the trial court’s grant of Sheila Perdue’s summary judgment motion on the grounds that she’s entitled to reasonable accommodations in applying for benefits but that does not necessarily require a caseworker or case management services.
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Opinions March 21, 2012

March 21, 2012
Indiana Supreme Court
State of Indiana v. International Business Machines Corporation
49S00-1201-PL-15
Civil plenary. Holds that Indiana Code 34-29-2-1 – providing that the governor of the state of Indiana is “privileged from arrest on civil process, and from obeying any subpoena to testify” – operates to preclude a trial court from issuing an order to compel the governor’s deposition in a contract dispute brought by the state of Indiana against a contractor. Justice Sullivan concurs in result.
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Opinions March 20, 2012

March 20, 2012
7th Circuit Court of Appeals
Estate of Nicholas D. Rice, deceased, by Rick D. Rice and Diane J. Waldrop, co-personal representatives v. Correctional Medical Services, et al.
http://media.ibj.com/Lawyer/websites/opinions/index.php?pdf=2012/march/GK0PUU3D.pdf
09-2804, 10-2389
U.S. District Court, Northern District of Indiana, South Bend Division, Judges Robert L. Miller Jr. and Rudy Lozano.
Civil. In No. 09-2804, affirms in part and reverse in part the District Court’s entry of summary judgment in favor of the defendants. A material dispute of fact precludes summary judgment on one of the estate’s Section 1983 claims. In No. 10-2389, reverses the District Court’s decision to dismiss the state claims on the basis of collateral estoppel. Remands both cases for further proceedings consistent with this opinion.
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Opinions March 19, 2012

March 19, 2012
Indiana Supreme Court
Jimmie E. Jones, Jr. v. State of Indiana
29S02-1108-CR-511
Criminal. Adopts Court of Appeals opinion in full, which affirmed the refusal by the trial court to give Jones’ tendered instructions on reckless homicide and involuntary manslaughter as lesser-included offenses to the murder charge. The evidence didn’t support a reckless homicide instruction and the charging information for the murder count foreclosed an involuntary manslaughter instruction.
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Opinions March 16, 2012

March 16, 2012
7th Circuit Court of Appeals
Harry Foster III and Linda Foster v. State Farm Fire and Casualty Company
11-3100
United States District Court, Northern District of Indiana, Fort Wayne Division, Judge Theresa L. Springman.
Civil. Affirms District Court’s grant of summary judgment in favor of State Farm Fire and Casualty Company, holding the Fosters’ failure to produce requested documents was a material breach of their insurance agreement.
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Opinions March 15, 2012

March 15, 2012
Indiana Supreme Court
Charlie White, et. al. v. Indiana Democratic Party, through its Chairman , Daniel J. Parker
49S00-1202-MI-73
Miscellaneous. Reverses a decision by Marion Circuit Judge Lou Rosenberg, which found that Charlie White was not eligible to take office following the November 2010 election because he had improperly registered to vote at an address where he was not living. Justice Brent Dickson concurred in result, but wrote separately to say that he agreed with the election contest being dismissed because he sees the Legislature’s attempt to impose additional eligibility qualifications on candidates as unconstitutional and not a basis to contest someone’s eligibility for office.
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Opinions March 14, 2012

March 14, 2012
Indiana Supreme Court
Phyllis Hardy, Alax Keith Furnish and Megan Jessica Furnish, by next friend Phyllis Hardy v. Mary Jo Hardy
51S01-1106-PL-366
Civil plenary. Holds that the Federal Employees’ Group Life Insurance Act does not preempt the equitable claims over the life insurance proceeds of Carlos Hardy and that the first wife and grandchildren are entitled to a constructive trust over at least a portion of the proceeds.

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Opinions March 13, 2012

March 13, 2012
7th Circuit Court of Appeals
Shannon McComas v. Edward Brickley
United States District Court, Southern District of Indiana, Indianapolis Division, Judge Sarah Evans Barker.
11-2138
Civil. Reverses District Court’s denial of Brickley’s motion for summary judgment. McComas filed suit against Brickley for false arrest after the charges against McComas were dropped.
But Brickley claimed that he had probable cause to arrest McComas and qualified immunity in his role as a police officer. The 7th Circuit agreed and held the District Court erred in its determination of qualified immunity. It remanded with instructions consistent with its opinion.
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Opinions March 12, 2012

March 12, 2012
Indiana Court of Appeals
Wells Fargo Bank, N.A., successor in interest to The Money Store Investment Corp., f/d/b/a First Union Small Business Capital v. Neal A. Summers, et al. (NFP)
02A04-1103-CP-112
Civil plenary. Dismisses appeal, holding that Wells Fargo failed to timely file its notice of appeal.

 
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Opinions March 9, 2012

March 9, 2012
7th Circuit Court of Appeals
United States of America v. Anthony Raupp
11-2215
United States District Court, Southern District of Indiana, Indianapolis Division, Judge Tanya Walton Pratt.
Criminal. Affirms District Court’s determination that Raupp was a “career offender,” due to a previous crime of violence, and affirms 100-month sentence. Judge Diane Wood dissented, holding that the majority relied on a note in the U.S. Sentencing Guidelines that is for agency interpretation of its own rule.
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Opinions March 8, 2012

March 8, 2012
7th Circuit Court of Appeals
U.S.A v. Marlon K. Spears
No. 10-3338
U.S. District Court, Northern District of Indiana, Hammond Division, Chief Judge Philip P. Simon.
Criminal. Affirms denial of motion to suppress evidence, finding that enough probable cause existed to justify a search warrant that led to a man’s convictions on drug charges.
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Opinions March 7, 2012

March 7, 2012
Indiana Court of Appeals
Angela C. Garrett v. State of Indiana
32A05-1105-CR-239
Criminal. Reverses Class A felony conviction of dealing methamphetamine, finding that the trial court should have instructed the jury on a lesser-included offense of possession of methamphetamine. Remands for a new trial.
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Opinions March 6, 2012

March 6, 2012
Indiana Supreme Court
Mark J. Thatcher v. City of Kokomo, et al.
94S00-1109-CQ-570
Certified question. Indiana Code 36-8-4-7(a) applies to a member of the 1977 Fund who is receiving disability benefits and who has been determined to have been recovered pursuant to 35 Indiana Administrative Code 2-5-5(c). And the time period during which a person receives disability benefits under Indiana Code 36-8-8-12(e) does not count toward “years of service” as that term is used in Indiana Code 36-8-4-7(a).
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Opinions March 5, 2012

March 5, 2012
Indiana Court of Appeals
Brandy L. Walczak v. Labor Works-Fort Wayne, LLC, d/b/a Labor Works
02A04-1109-PL-509
Civil plenary. Reverses summary judgment for Labor Works-Fort Wayne in Walczak’s suit for unpaid wages. Concludes that the matter must be first submitted to the Department of Labor for resolution, so the trial court lacked subject matter jurisdiction over the claims until the DOL had made a determination. Remands with instructions to dismiss the complaint.
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Opinions March 2, 2012

March 2, 2012
Indiana Court of Appeals
Brian Scott Hartman v. State of Indiana
68A01-1106-CR-264
Criminal. Affirms the denial of Hartman’s motion to suppress a statement he made to the police regarding involvement in the death of his father. Hartman initiated further communication by asking whether the search warrant had been served and whether anything had been found, and then told the detective that he wanted to speak with him.
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Opinions March 1, 2012

March 1, 2012
Indiana Court of Appeals
Jeremy K. Warriner v. DC Marshall Jeep a/k/a DC Marshall, Inc.
49A02-1106-CT-489
Civil tort.  Affirms summary judgment for the dealership in Warriner’s suit alleging the dealership is strictly liable for the injuries he sustained in a car accident under the Indiana Products Liability Act and liable for negligent marketing of an unsafe product. Holds a manufacturer’s discharge in bankruptcy does not prevent a trial court from holding jurisdiction over that manufacturer. Judge Bailey concurs in part and concurs in result in part.
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Opinions Feb. 29, 2012

February 29, 2012
Indiana Court of Appeals
Joseph A. Davis v. Herbert Simon and Bui Simon
49A04-1101-CT-5
Civil tort. Reverses denial of Davis’ motion to dismiss for lack of personal jurisdiction a complaint filed by the Simons alleging defamation and false light publicity. Davis’ act of responding to the questions of a reporter who initiated the contact with Davis regarding a California lawsuit, in which he is serving as a plaintiff’s attorney, was not done with the purpose of expressly targeting a resident of the forum state. Judge Kirsch dissents.
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Opinions Feb. 28, 2012

February 28, 2012
Indiana Court of Appeals
Jacob Key, Ted J. Brown and Sally A. Brown v. Dewayne Hamilton
48A02-1007-CT-812
Civil tort. Affirms trial court’s grant of summary judgment in favor of Hamilton, holding that Key – by waving into traffic a driver who caused a crash with Hamilton – assumed a duty of care to a third-party motorist because the signaled driver reasonably expected that traffic was clear.
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Opinions Feb. 27, 2012

February 27, 2012
Indiana Court of Appeals
Arc Construction Management, LLC, and Alan Muncy v. John Zelenak and Cecilia Zelenak
10A01-1106-CT-247
Civil Tort. Affirms and remands case involving a home construction lawsuit, finding that trial court didn’t err in denying summary judgment on the former homeowners’ claim of breach of implied warranty of habitability.
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Opinions Feb. 24, 2012

February 24, 2012
Indiana Court of Appeals
CFS, LLC and Charles Blackwelder v. Bank of America, Successor in Interest to LaSalle Bank Midwest National Association

29A02-1105-MF-436
Mortgage foreclosure.  Affirms trial court’s granting of summary judgment in favor of Bank of America, finding that the bank established no genuine issue of material fact existed about whether a successor bank surviving after a merger could enforce the note and mortgage of the predecessor.

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Opinions Feb. 23, 2012

February 23, 2012
Indiana Court of Appeals
Eriberto Quiroz v. State of Indiana
49A02-1107-CR-577
Criminal. Reverses Quiroz’s conviction of Class C felony child molesting because that conviction along with a Class A felony child molesting conviction constitutes double jeopardy as the same evidence supports both convictions. Remands for the trial court to vacate the Class C felony conviction. The trial court did not commit fundamental error in including in the jury instructions a copy of the charging information that included the counts against Quiroz that had previously been dismissed.
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Opinions Feb. 22, 2012

February 22, 2012
Indiana Supreme Court
Jerrme Cartwright v. State of Indiana
82S01-1109-CR-564
Criminal. Affirms convictions of attempted battery and unlawful possession of a firearm by a serious violent felon. Finds no evidence of pretext in the state’s strike of venireperson Bard, the only African-American.
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  1. 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

  2. As an adoptive parent, I have to say this situation was as shameful as it gets. While the state government opens its wallet to the Simons and their friends, it denied payments to the most vulnerable in our state. Thanks Mitch!

  3. We as lawyers who have given up the range of First amendment freedom that other people possess, so that we can have a license to practice in the courts of the state and make gobs of money, that we agree to combat the hateful and bigoted discrimination enshrined in the law by democratic majorities, that Law Lord Posner has graciously explained for us....... We must now unhesitatingly condemn the sincerely held religious beliefs of religiously observant Catholics, Muslims, Christians, and Jewish persons alike who yet adhere to Scriptural exhortations concerning sodomites and catamites..... No tolerance will be extended to intolerance, and we must hate the haters most zealously! And in our public explanations of this constitutional garbledygook, when doing the balancing act, we must remember that the state always pushes its finger down on the individualism side of the scale at every turn and at every juncture no matter what the cost to society.....to elevate the values of a minority over the values of the majority is now the defining feature of American "Democracy..." we must remember our role in tricking Americans to think that this is desirable in spite of their own democratically expressed values being trashed. As a secular republic the United States might as well be officially atheist, religious people are now all bigots and will soon be treated with the same contempt that kluckers were in recent times..... The most important thing is that any source of moral authority besides the state be absolutely crushed.

  4. In my recent article in Indiana Lawyer, I noted that grass roots marketing -- reaching out and touching people -- is still one of the best forms of advertising today. It's often forgotten in the midst of all of today's "newer wave" marketing techniques. Shaking hands and kissing babies is what politicians have done for year and it still works. These are perfect examples of building goodwill. Kudos to these firms. Make "grass roots" an essential part of your marketing plan. Jon Quick QPRmarketing.com

  5. Hi, Who can I speak to regarding advertising today? Thanks, Gary

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