Opinions

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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Opinions Feb. 21, 2012

February 21, 2012
Indiana Court of Appeals
Herbert Yanez v. State of Indiana
49A02-1104-CR-362
Criminal. Reverses conviction of possession of marijuana as a Class A misdemeanor and remands for further proceedings. There was no evidence presented as to why Yanez was stopped and the evidence presented didn’t establish the reasonableness of the state’s actions. Judge Barnes concurs in result in a separate opinion.
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Opinions Feb. 20, 2012

February 20, 2012
Indiana Court of Appeals
Curtis Cole v. Review Board of the Indiana Dept. of Workforce Development, and Owen County (NFP)
93A02-1106-EX-510
Agency appeal. Affirms denial of unemployment benefits.
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Opinions Feb. 17, 2012

February 17, 2012
7th Circuit Court of Appeals
United States of America v. Samuel T. Henzel
11-2293
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge Tanya Walton Pratt.
Criminal. Affirms 135-month sentence imposed following guilty plea to traveling across state lines with the intent to engage in illicit sexual conduct. The District Court miscalculated the imprisonment range favorably to Henzel, and the sentence imposed is actually within the correctly calculated range.
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Opinions Feb. 16, 2012

February 16, 2012
Indiana Supreme Court
Richmond State Hospital and All Other Similarly Situated State Institutions and Agencies v. Paula Brattain, et al.
49S02-1106-CV-327
Civil. Holds that the back pay recovery of the non-merit employees of the state should be limited in the same manner as the Court of Appeals has set forth for that of merit employees of the state. Remands with instructions to recalculate the non-merit employees’ back pay judgment based upon the time period beginning either 10 days before the complaint or 10 days before the filing of their grievances until the day the state eliminated its split-pay system, and summarily affirms the COA in all other respects.
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Opinions Feb. 15, 2012

February 15, 2012
Indiana Court of Appeals
Pierre Freeman v. State of Indiana (NFP)
15A01-1107-CR-341
Criminal. Affirms revocation of probation.
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Opinions Feb. 14, 2012

February 14, 2012
Indiana Court of Appeals
In Re: The Marriage of K.Z. and M.H.
43A05-1107-DR-436
Domestic relation. Affirms trial court’s order modifying dissolution decree to reflect that a child of the marriage between K.Z. and M.H. had been born after their divorce. Citing mother’s statement in the original dissolution decree, holds that no question of paternity exists, and therefore, the court did not abuse its discretion in modifying the dissolution decree at the father’s request.
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Opinions Feb. 13, 2012

February 13, 2012
Indiana Court of Appeals
Bloomington Magazine, Inc. v. Mark Kiang d/b/a Mikado Restaurant, Sunbeam Corp., and Truffles 56 Degrees Incorporated
53A05-1012-SC-790
Civil. Reverses trial court’s order denying a motion to set aside judgment in favor of Mikado Restaurant Sunbeam Corp. and Truffles 56 Degrees. Finds that the trial court abused its discretion in denying a motion for the judge’s recusal and request for a special judge in light of one of the attorney’s past involvement as the judge’s 2008 election campaign chair. Remands the case for proceedings consistent with this appellate decision.
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Opinions Feb. 10, 2012

February 10, 2012
Indiana Court of Appeals
Commissioner of the Indiana Dept. of Insurance v. Tim Black, as Husband and Personal Rep. of Kay Black, Deceased
64A05-1104-CT-240
Civil tort. Reverses trial court’s denial of commissioner’s motion to dismiss but agrees with Black that because additional documentation had accompanied the commissioner’s motion, it should be treated as a motion for summary judgment, pursuant to Trial Rule 56. Holds that Black did not provide sufficient evidence of an agreement and a genuine issue of material fact exists. Remands for further proceedings. 
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Opinions Feb. 9, 2012

February 9, 2012
7th Circuit Court of Appeals
Sammie L. Booker-El v. Superintendent, Indiana State Prison and all agents
10-1490
U.S. District Court, Northern District of Indiana, South Bend Division, Judge Robert L. Miller Jr.
Civil. Affirms District Court’s dismissal of Booker-El’s complaint that prison officials misappropriated funds intended by statute to be used for the inmates’ benefit without due process of law. Booker-El has no property interest in the inmates’ recreation fund.
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Opinions Feb. 8, 2012

February 8, 2012
Indiana Court of Appeals
Bei Bei Shuai v. State of Indiana
49A02-1106-CR-486
Criminal. Reverses trial courts’ denial of Shuai’s request to be released on bail. The defense presented sufficient evidence to rebut the presumption that Shuai is guilty of murder of her child. Remands for a determination of bail. Declines to adopt Shuai’s argument that the murder statute is ambiguous as applied to her. Affirms denial of her motion to dismiss. Judge Riley concurs in part and dissents in part.

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Opinions Feb. 7, 2012

February 7, 2012
7th Circuit Court of Appeals
Roy Wirtz, et al. v. City of South Bend
11-3811
U.S. District Court, Northern District of Indiana, South Bend Division, Judge Robert L. Miller Jr.
Civil. Affirms dismissal of the city’s motion to appeal a case arising under the First Amendment’s establishment clause. Although the city is challenging two appealable orders, the challenge is untimely. The appeal is also moot.
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Opinions Feb. 6, 2012

February 6, 2012
Indiana Court of Appeals
Continental Electric Co., Inc. v. Gary Community School Corporation (NFP)
45A05-1105-PL-247
Civil plenary. Affirms denial of Continental Electric’s request for a preliminary injunction.
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Opinions Feb. 3, 2012

February 3, 2012
7th Circuit Court of Appeals
Larry Davis v. Kris Ockomon, et al.
10-2589
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge William T. Lawrence.
Civil. Affirms finding that the position of senior humane officer for the city of Anderson was a policymaking position and therefore Davis could be dismissed for political reasons. City ordinances authorized the senior humane officer to exercise policymaking discretion.
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Opinions Feb. 2, 2012

February 2, 2012
7th Circuit Court of Appeals
Emergency Services Billing Corp. Inc., individually (and as agent for) agent of Westville Volunteer Fire Department v. Allstate Insurance Co., et al.
11-2381
U.S. District Court, Northern District of Indiana, Hammond Division at Lafayette, Judge John E. DeGuilio.
Civil. Affirms dismissal of ESBC’s suit seeking individuals involved in car accidents are responsible for the clean-up costs of hazardous substances released after accidents. A motor vehicle owned for personal use is a “consumer product in consumer use” under the Comprehensive Environmental Response, Compensation and Liability Act, and thus owners/operators of personal motor vehicles are exempt from CERCLA’s response-cost provisions.
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Opinions Feb. 1, 2012

February 1, 2012
Indiana Court of Appeals
Mitchell & Stark Construction Company, Inc. v. Strand Associates, Inc., as successor In interest to Sieco, Inc. (NFP)
36A04-1103-CT-79
Civil tort. Affirms trial court’s grant of summary judgment in favor of Strand Associates.
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Opinions Jan. 31, 2012

January 31, 2012
7th Circuit Court of Appeals
Dale J. Atkins v. Michael Zenk
11-1891
Civil. Affirms U.S. District Court’s denial of habeas corpus petition, holding Atkins did not prove his claim that he was deprived of his Sixth Amendment right to effective assistance of trial counsel.
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Opinions Jan. 30, 2012

January 30, 2012
Indiana Court of Appeals
State of Indiana v. Johnnie S. McCaa
56A04-1107-CR-341
Criminal. Reverses trial court’s grant of McCaa’s motion to suppress evidence, holding that due to the unusual circumstances of an initial traffic stop, police did not err in asking McCaa to drive his truck to another location, where he ultimately failed field sobriety tests.
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Opinions Jan. 27, 2012

January 27, 2012
Indiana Court of Appeals
Robert Holland, A Concerned Citizen for the Redevelopment of Gary v. Richard Steele, Barbara Steele, First Midwest Bank, As Successor Trustee By Way of Merger to Bank Calumet, N.A., et al.
45A03-1102-PL-84
Civil plenary. Affirms the trial court’s determination that Holland was not entitled to summary judgment on his quiet title claim, and grant of summary judgment to the bank on its trespass and slander of title claims. The trial court properly found that Holland had filed a frivolous lawsuit and awarded appropriate attorney fees. On cross-appeal, the appellate court denied the bank’s request for appellate attorney fees.
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  1. He called our nation a nation of cowards because we didn't want to talk about race. That was a cheap shot coming from the top cop. The man who decides who gets the federal government indicts. Wow. Not a gentleman if that is the measure. More importantly, this insult delivered as we all understand, to white people-- without him or anybody needing to explain that is precisely what he meant-- but this is an insult to timid white persons who fear the government and don't want to say anything about race for fear of being accused a racist. With all the legal heat that can come down on somebody if they say something which can be construed by a prosecutor like Mr Holder as racist, is it any wonder white people-- that's who he meant obviously-- is there any surprise that white people don't want to talk about race? And as lawyers we have even less freedom lest our remarks be considered violations of the rules. Mr Holder also demonstrated his bias by publically visiting with the family of the young man who was killed by a police offering in the line of duty, which was a very strong indicator of bias agains the offer who is under investigation, and was a failure to lead properly by letting his investigators do their job without him predetermining the proper outcome. He also has potentially biased the jury pool. All in all this worsens race relations by feeding into the perception shared by whites as well as blacks that justice will not be impartial. I will say this much, I do not blame Obama for all of HOlder's missteps. Obama has done a lot of things to stay above the fray and try and be a leader for all Americans. Maybe he should have reigned Holder in some but Obama's got his hands full with other problelms. Oh did I mention HOlder is a bank crony who will probably get a job in a silkstocking law firm working for millions of bucks a year defending bankers whom he didn't have the integrity or courage to hold to account for their acts of fraud on the United States, other financial institutions, and the people. His tenure will be regarded by history as a failure of leadership at one of the most important jobs in our nation. Finally and most importantly besides him insulting the public and letting off the big financial cheats, he has been at the forefront of over-prosecuting the secrecy laws to punish whistleblowers and chill free speech. What has Holder done to vindicate the rights of privacy of the American public against the illegal snooping of the NSA? He could have charged NSA personnel with violations of law for their warrantless wiretapping which has been done millions of times and instead he did not persecute a single soul. That is a defalcation of historical proportions and it signals to the public that the government DOJ under him was not willing to do a damn thing to protect the public against the rapid growth of the illegal surveillance state. Who else could have done this? Nobody. And for that omission Obama deserves the blame too. Here were are sliding into a police state and Eric Holder made it go all the faster.

  2. JOE CLAYPOOL candidate for Superior Court in Harrison County - Indiana This candidate is misleading voters to think he is a Judge by putting Elect Judge Joe Claypool on his campaign literature. paragraphs 2 and 9 below clearly indicate this injustice to voting public to gain employment. What can we do? Indiana Code - Section 35-43-5-3: Deception (a) A person who: (1) being an officer, manager, or other person participating in the direction of a credit institution, knowingly or intentionally receives or permits the receipt of a deposit or other investment, knowing that the institution is insolvent; (2) knowingly or intentionally makes a false or misleading written statement with intent to obtain property, employment, or an educational opportunity; (3) misapplies entrusted property, property of a governmental entity, or property of a credit institution in a manner that the person knows is unlawful or that the person knows involves substantial risk of loss or detriment to either the owner of the property or to a person for whose benefit the property was entrusted; (4) knowingly or intentionally, in the regular course of business, either: (A) uses or possesses for use a false weight or measure or other device for falsely determining or recording the quality or quantity of any commodity; or (B) sells, offers, or displays for sale or delivers less than the represented quality or quantity of any commodity; (5) with intent to defraud another person furnishing electricity, gas, water, telecommunication, or any other utility service, avoids a lawful charge for that service by scheme or device or by tampering with facilities or equipment of the person furnishing the service; (6) with intent to defraud, misrepresents the identity of the person or another person or the identity or quality of property; (7) with intent to defraud an owner of a coin machine, deposits a slug in that machine; (8) with intent to enable the person or another person to deposit a slug in a coin machine, makes, possesses, or disposes of a slug; (9) disseminates to the public an advertisement that the person knows is false, misleading, or deceptive, with intent to promote the purchase or sale of property or the acceptance of employment;

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  4. I grew up on a farm and live in the county and it's interesting that the big industrial farmers like Jeff Shoaf don't live next to their industrial operations...

  5. 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

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