Opinions
Opinions Nov. 5, 2010
November 5, 2010
Indiana Court of Appeals
S.A. v. Review Board
93A02-1004-EX-568
Civil. Affirms the Review Board of the Indiana Department of Workforce Development’s ruling that S.A.’s acceptance of an early retirement package made her ineligible to continue receiving unemployment benefits. S.A. left employment without good cause in connection with the work.
MoreS.A. v. Review Board
93A02-1004-EX-568
Civil. Affirms the Review Board of the Indiana Department of Workforce Development’s ruling that S.A.’s acceptance of an early retirement package made her ineligible to continue receiving unemployment benefits. S.A. left employment without good cause in connection with the work.
Opinions Nov. 4, 2010
November 4, 2010
Indiana Court of Appeals
DBL Axel LLC v. Lasalle Bank National Association
15A01-1003-PL-205
Civil plenary. Affirms order directing immediate turnover of funds in favor of LaSalle Bank. The checks paid by the city of Lawrenceburg to DBL concerned the property in question and were within the scope of and subject to the receivership order, and DBL’s failure to include that money paid or otherwise notify the receiver of the settlement agreement was a violation of that order. Remands for the trial court to amend its order directing immediate turnover of funds and enter an order directing turnover in the amount of $1,365,500.
MoreDBL Axel LLC v. Lasalle Bank National Association
15A01-1003-PL-205
Civil plenary. Affirms order directing immediate turnover of funds in favor of LaSalle Bank. The checks paid by the city of Lawrenceburg to DBL concerned the property in question and were within the scope of and subject to the receivership order, and DBL’s failure to include that money paid or otherwise notify the receiver of the settlement agreement was a violation of that order. Remands for the trial court to amend its order directing immediate turnover of funds and enter an order directing turnover in the amount of $1,365,500.
Opinions Nov. 3, 2010
November 3, 2010
Indiana Court of Appeals
James K. Oberst v. State of Indiana
14A05-1003-PC-157
Post conviction. Affirms denial of petition for post-conviction relief. Because Oberst gave his statement that he had sex with the victim to police in counsel’s presence before adversary criminal proceedings had been initiated, he had no Sixth Amendment right to counsel and therefore no right to the effective assistance of counsel.
MoreJames K. Oberst v. State of Indiana
14A05-1003-PC-157
Post conviction. Affirms denial of petition for post-conviction relief. Because Oberst gave his statement that he had sex with the victim to police in counsel’s presence before adversary criminal proceedings had been initiated, he had no Sixth Amendment right to counsel and therefore no right to the effective assistance of counsel.
Opinions Nov. 2, 2010
November 2, 2010
The Indiana Supreme Court, Indiana Court of Appeals, and Indiana Tax Court were closed in observance of Election Day.
MoreOpinions Nov. 1, 2010
November 1, 2010
Indiana Court of Appeals
Michael J. Shepard v. State of Indiana (NFP)
82A05-1002-CR-94
Criminal. Affirms conviction of Class D felony resisting law enforcement and Class C misdemeanor operating a vehicle with
an alcohol concentration of 0.08 or more
Opinions Oct. 29, 2010
October 29, 2010
Indiana Court of Appeals
John Taele and Sarah Taele v. State Farm Mutual Automobile Insurance Co.
06A01-1004-CT-259
Civil tort. Affirms summary judgment in favor of State Farm. The Taeles aren’t entitled to recover uninsured motorist benefits under their State Farm policy because they themselves were neither directly impacted nor directly physically injured by the accident that killed their daughter. Judge Crone dissents.
MoreJohn Taele and Sarah Taele v. State Farm Mutual Automobile Insurance Co.
06A01-1004-CT-259
Civil tort. Affirms summary judgment in favor of State Farm. The Taeles aren’t entitled to recover uninsured motorist benefits under their State Farm policy because they themselves were neither directly impacted nor directly physically injured by the accident that killed their daughter. Judge Crone dissents.
Opinions Oct. 28, 2010
October 28, 2010
Indiana Court of Appeals
Robert D. Davis v. State of Indiana
32A01-1003-CR-144
Criminal. Affirms denial of Davis’ motion for leave to amend his motion to correct erroneous sentence. The information before the appellate court doesn’t allow it to decide whether he was erroneously sentenced.
Opinions Oct. 27, 2010
October 27, 2010
7th Circuit Court of Appeals
James L. Parkey v. Jason E. Sample
09-3966
U.S. District Court, Northern District of Indiana, South Bend Division, Judge William C. Lee
Civil. Affirms District Court’s grant of Indiana State Trooper Jason Sample’s motion for summary judgment, which found James Parkey, who sued under 42 U.S.C. § 1983, had not brought forth any evidence to demonstrate a lack of probable cause. Parkey claimed Sample had violated his rights under the Fourth Amendment by searching his home and seizing his property without probable cause. Suspecting Parkey had a marijuana grow operation, Sample did two trash pulls near Parkey’s residence where Sample found marijuana cigarettes and stems from marijuana plants, evidence he presented to a Lake County Superior magistrate, who issued a search warrant for Parkey’s home.
MoreJames L. Parkey v. Jason E. Sample
09-3966
U.S. District Court, Northern District of Indiana, South Bend Division, Judge William C. Lee
Civil. Affirms District Court’s grant of Indiana State Trooper Jason Sample’s motion for summary judgment, which found James Parkey, who sued under 42 U.S.C. § 1983, had not brought forth any evidence to demonstrate a lack of probable cause. Parkey claimed Sample had violated his rights under the Fourth Amendment by searching his home and seizing his property without probable cause. Suspecting Parkey had a marijuana grow operation, Sample did two trash pulls near Parkey’s residence where Sample found marijuana cigarettes and stems from marijuana plants, evidence he presented to a Lake County Superior magistrate, who issued a search warrant for Parkey’s home.
Opinions Oct. 26, 2010
October 26, 2010
Indiana Court of Appeals
Allstate Insurance Company v. Timothy Clancy, et al.
45A03-0910-CV-498
Civil. Reverses trial court’s order granting a motion to compel the production of documents. In its interlocutory appeal, Allstate Insurance Company raised the following issue: whether the trial court abused its discretion by compelling production of documents subject to the attorney-client privilege on the ground that Allstate has implicitly raised an advice of counsel defense, thereby waiving the attorney-client privilege.
MoreAllstate Insurance Company v. Timothy Clancy, et al.
45A03-0910-CV-498
Civil. Reverses trial court’s order granting a motion to compel the production of documents. In its interlocutory appeal, Allstate Insurance Company raised the following issue: whether the trial court abused its discretion by compelling production of documents subject to the attorney-client privilege on the ground that Allstate has implicitly raised an advice of counsel defense, thereby waiving the attorney-client privilege.
Opinions Oct. 25, 2010
October 25, 2010
Indiana Court of Appeals
Alesa Pack v. Indiana Family and Social Services Administration
89A05-1004-PL-240
Civil plenary. Reverses denial of Medicaid benefits. The administrative law judge’s decision is defective for failing to consider the totality of the evidence provided and in its presentation of and engagement with the findings of basic fact when applying the law to reach a finding of ultimate fact that Pack’s health conditions didn’t substantially impair her ability to work. Remands to the ALJ for further proceedings.
MoreAlesa Pack v. Indiana Family and Social Services Administration
89A05-1004-PL-240
Civil plenary. Reverses denial of Medicaid benefits. The administrative law judge’s decision is defective for failing to consider the totality of the evidence provided and in its presentation of and engagement with the findings of basic fact when applying the law to reach a finding of ultimate fact that Pack’s health conditions didn’t substantially impair her ability to work. Remands to the ALJ for further proceedings.
Opinions Oct. 22, 2010
October 22, 2010
Indiana Court of Appeals
Belle City Amusements, Inc. v. Doorway Promotions, Inc.
35A05-0912-CV-711
Civil. Reverses award of damages for lost profits for the years 2010 through 2013 in the amount of $17,500 for each year to Doorway after Belle City cancelled its agreement with the company to provide rides and concessions for a festival. The damages were not a foreseeable consequence of the breach of the agreement between Belle City and Doorway and Indiana doesn’t allow for recovery for perceived loss of reputation or goodwill in an action for breach of contract. Affirms $24,000 award to Doorway for the 2009 rent of the Coliseum to house the festival. Remands for further proceedings.
MoreBelle City Amusements, Inc. v. Doorway Promotions, Inc.
35A05-0912-CV-711
Civil. Reverses award of damages for lost profits for the years 2010 through 2013 in the amount of $17,500 for each year to Doorway after Belle City cancelled its agreement with the company to provide rides and concessions for a festival. The damages were not a foreseeable consequence of the breach of the agreement between Belle City and Doorway and Indiana doesn’t allow for recovery for perceived loss of reputation or goodwill in an action for breach of contract. Affirms $24,000 award to Doorway for the 2009 rent of the Coliseum to house the festival. Remands for further proceedings.
Opinions Oct. 21, 2010
October 21, 2010
Indiana Court of Appeals
Brenda Moore v. State of Indiana
49A04-1001-CR-46
Criminal. Reverses conviction of Class B misdemeanor public intoxication. Under the circumstances, Moore was not in a public place and therefore the evidence is insufficient to support a conviction of public intoxication. Judge Vaidik dissents.
MoreBrenda Moore v. State of Indiana
49A04-1001-CR-46
Criminal. Reverses conviction of Class B misdemeanor public intoxication. Under the circumstances, Moore was not in a public place and therefore the evidence is insufficient to support a conviction of public intoxication. Judge Vaidik dissents.
Opinions Oct. 20, 2010
October 20, 2010
Indiana Court of Appeals
J.B. v. E.B.
34A04-1002-DR-110
Domestic relation. Reverses trial court decision to exclude son’s counseling records at a custody modification hearing. The instant case is a proceeding within the purview of Indiana Code Section 31-32-11-1 and the counselor/client privilege does not apply. Remands for further proceedings.
MoreJ.B. v. E.B.
34A04-1002-DR-110
Domestic relation. Reverses trial court decision to exclude son’s counseling records at a custody modification hearing. The instant case is a proceeding within the purview of Indiana Code Section 31-32-11-1 and the counselor/client privilege does not apply. Remands for further proceedings.
Opinions Oct. 19, 2010
October 19, 2010
Indiana Court of Appeals
Carla Johnson and Michael Johnson v. State of Indiana (NFP)
49A05-0911-CR-651
Criminal. Affirms Carla’s convictions of Class B felonies neglect of a dependent and battery, and affirms Michael’s conviction of Class B felony neglect.
MoreCarla Johnson and Michael Johnson v. State of Indiana (NFP)
49A05-0911-CR-651
Criminal. Affirms Carla’s convictions of Class B felonies neglect of a dependent and battery, and affirms Michael’s conviction of Class B felony neglect.
Opinions Oct. 18, 2010
October 18, 2010
7th Circuit Court of Appeals
Tom George, et al. v. National Collegiate Athletic Association
09-3667
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge William T. Lawrence.
Civil. Vacates opinion reversing District Court’s dismissal of claims with prejudice, stays the appeal, and certifies three questions to the Indiana Supreme Court: Do the plaintiffs’ allegations about the NCAA’s method for allocating scarce tickets to championship tournaments describe a lottery that would be unlawful under Indiana law? If the plaintiffs’ allegations describe an unlawful lottery, would the NCAA’s method for allocating tickets fall within the Ind. Code Section 35-45-5-1(d) exception for “bona fide business transactions that are valid under the law of contracts”? If the plaintiffs’ allegations describe an unlawful lottery, do plaintiffs’ allegations show that their claims are subject to an in pari delecto defense as described in Lesher v. Baltimore Football Club and Swain v. Bussell?
MoreTom George, et al. v. National Collegiate Athletic Association
09-3667
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge William T. Lawrence.
Civil. Vacates opinion reversing District Court’s dismissal of claims with prejudice, stays the appeal, and certifies three questions to the Indiana Supreme Court: Do the plaintiffs’ allegations about the NCAA’s method for allocating scarce tickets to championship tournaments describe a lottery that would be unlawful under Indiana law? If the plaintiffs’ allegations describe an unlawful lottery, would the NCAA’s method for allocating tickets fall within the Ind. Code Section 35-45-5-1(d) exception for “bona fide business transactions that are valid under the law of contracts”? If the plaintiffs’ allegations describe an unlawful lottery, do plaintiffs’ allegations show that their claims are subject to an in pari delecto defense as described in Lesher v. Baltimore Football Club and Swain v. Bussell?
Opinions Oct. 15, 2010
October 15, 2010
Indiana Court of Appeals
Southlake Community Mental Health Center, Inc., et al. v. Board of Zoning Appeals of the City of Crown Point, Indiana, et al.
45A03-1002-MI-81
Miscellaneous. Reverses determination that the Board of Zoning Appeals of the City of Crown Point correctly concluded that Southlake and Watertower South’s proposed use of a certain parcel was inappropriate for the parcel’s zoning classification. The original appeal of the Crown Point Plan Commission’s decision by Feather Rock Professional Office Park was untimely. Remands with instructions to grant Southlake and Watertower’s certiorari petition.
MoreSouthlake Community Mental Health Center, Inc., et al. v. Board of Zoning Appeals of the City of Crown Point, Indiana, et al.
45A03-1002-MI-81
Miscellaneous. Reverses determination that the Board of Zoning Appeals of the City of Crown Point correctly concluded that Southlake and Watertower South’s proposed use of a certain parcel was inappropriate for the parcel’s zoning classification. The original appeal of the Crown Point Plan Commission’s decision by Feather Rock Professional Office Park was untimely. Remands with instructions to grant Southlake and Watertower’s certiorari petition.
Opinions Oct. 14, 2010
October 14, 2010
Indiana Court of Appeals
Town of Culver Board of Zoning Appeals v. Roderick J. Ratcliff and Pamela A. Ratcliff
50A03-1004-MI-179
Miscellaneous. Affirms judgment in favor of the Ratcliffs on their petition for writ of certiorari from an adverse decision of the Board of Zoning Appeals. The storage sheds on a landscaped gravel lot supplied with electricity aren’t considered “structures” within the definition of Culver’s zoning ordinances.
Opinions Oct. 13, 2010
October 13, 2010
7th Circuit Court of Appeals
United
States of America v. Cruz Saenz
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge Sarah Evans Barker.
Criminal. Affirms conviction of conspiring to distribute more than 5 kilograms of cocaine but vacates his 293-month sentence.
Rejects Saenz’s speedy trial challenge because nearly all of the delay is attributable to requests by Saenz or his co-defendants
and the court didn’t error in imposing an obstruction of justice enhancement by concluding Saenz willfully lied about
whether he knew the money he was transporting was drug money. Remands for the District Court to reconsider whether Saenz should
receive the minor role adjustment as there is no evidence in the record of his involvement in a conspiracy beyond the single
transport of money.
Opinions Oct. 12, 2010
October 12, 2010
7th Circuit Court of Appeals
United States of America and State of New York, et al. v. Cinergy Corp., et al.
No. 1:99-CV-1693
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge Larry J. McKinney.
Civil. Reverses District Court ruling in the government’s favor regarding modifications involving sulphur dioxide emissions because Cinergy met the standard that was authorized by a state plan the Environmental Protection Agency approved. Finds the District Court should not have admitted evidence by the EPA’s expert witnesses. Rules that without expert testimony to support an estimate of actual emissions caused by the modifications, the government cannot prevail with respect to the charge of nitrogen oxide pollution. Dismisses cross-appeal.
MoreUnited States of America and State of New York, et al. v. Cinergy Corp., et al.
No. 1:99-CV-1693
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge Larry J. McKinney.
Civil. Reverses District Court ruling in the government’s favor regarding modifications involving sulphur dioxide emissions because Cinergy met the standard that was authorized by a state plan the Environmental Protection Agency approved. Finds the District Court should not have admitted evidence by the EPA’s expert witnesses. Rules that without expert testimony to support an estimate of actual emissions caused by the modifications, the government cannot prevail with respect to the charge of nitrogen oxide pollution. Dismisses cross-appeal.
Opinions Oct. 11, 2010
October 11, 2010
The Indiana Supreme Court, Court of Appeals, and Tax Court were closed today in observance of Columbus Day.
MoreOpinions Oct. 8, 2010
October 8, 2010
Indiana Court of Appeals
Richmond State Hospital, et al. v. Paula Brattain, et al.
49A02-0908-CV-718
Civil. Reverses finding that the merit employees, represented by Veregge and Strong, are entitled to 20 years of back pay and remands with instructions to recalculate the merit employees’ back pay based on the time period beginning 10 days before the July 29, 1993, complaint was filed and ending when the state abolished the split class system. Instructs the trial court to determine whether the state abolished the split class system on Sept. 12 or Sept. 19, 1993. Affirms in all other respects.
MoreRichmond State Hospital, et al. v. Paula Brattain, et al.
49A02-0908-CV-718
Civil. Reverses finding that the merit employees, represented by Veregge and Strong, are entitled to 20 years of back pay and remands with instructions to recalculate the merit employees’ back pay based on the time period beginning 10 days before the July 29, 1993, complaint was filed and ending when the state abolished the split class system. Instructs the trial court to determine whether the state abolished the split class system on Sept. 12 or Sept. 19, 1993. Affirms in all other respects.
Opinions Oct. 7, 2010
October 7, 2010
Indiana Court of Appeals
Dorris Merriweather III v. State of Indiana (NFP)
02A04-0912-CR-691
Criminal. Affirms conviction of Class A felony child molesting and Class C felony child molesting.
MoreDorris Merriweather III v. State of Indiana (NFP)
02A04-0912-CR-691
Criminal. Affirms conviction of Class A felony child molesting and Class C felony child molesting.
Opinions Oct. 6, 2010
October 6, 2010
Indiana Court of Appeals
Charles J. Kennedy v. State of Indiana
89A04-0907-CR-380
Criminal. Affirms conviction of and 27-year sentence for Class A felony robbery and Class A felony conspiracy to commit robbery. Rules the trial court properly admitted DNA evidence and properly allowed testimony of a witness not discovered until mid-trial. Also rules sentence is appropriate.
MoreCharles J. Kennedy v. State of Indiana
89A04-0907-CR-380
Criminal. Affirms conviction of and 27-year sentence for Class A felony robbery and Class A felony conspiracy to commit robbery. Rules the trial court properly admitted DNA evidence and properly allowed testimony of a witness not discovered until mid-trial. Also rules sentence is appropriate.
Opinions Oct. 5. 2010
October 5, 2010
Indiana Supreme Court
Wayne D. Kubsch v. State of Indiana
71S00-0708-PD-335
Post-conviction. Affirms judgment of the post-conviction court. Kubsch appeals, raising several issues for review, nine of which are waived because they were known and available at the time of Kubsch’s direct appeal and another three issues are barred because of the doctrine of res judicata. Regarding claims the prosecutor failed to disclose exculpatory evidence, rules information was not material and he failed to establish the nine requirements for obtaining a new trial due to newly discovered evidence so his Brady v. Maryland, 373 U.S. 83 (1963), claim fails. Also rules Kubsch failed to demonstrate that counsel rendered ineffective assistance.
MoreWayne D. Kubsch v. State of Indiana
71S00-0708-PD-335
Post-conviction. Affirms judgment of the post-conviction court. Kubsch appeals, raising several issues for review, nine of which are waived because they were known and available at the time of Kubsch’s direct appeal and another three issues are barred because of the doctrine of res judicata. Regarding claims the prosecutor failed to disclose exculpatory evidence, rules information was not material and he failed to establish the nine requirements for obtaining a new trial due to newly discovered evidence so his Brady v. Maryland, 373 U.S. 83 (1963), claim fails. Also rules Kubsch failed to demonstrate that counsel rendered ineffective assistance.
Opinions Oct. 4, 2010
October 4, 2010
Indiana Court of Appeals
Donald
L. Pruitt v. State of Indiana
55A01-0912-CR-597
Criminal. Affirms denial of Pruitt’s motion to suppress, who was charged with operating a motor vehicle after driving
privileges had been forfeited for life as a Class C felony. The lack of limiting language in Indiana Code Section 9-30-10-17
supports that Indiana Code sections 9-21-18-1 to 9-21-18-15 do not bar law enforcement officers from investigating violations
in private parking lots in the absence of a contractual agreement with the property owner. Concludes the police officer had
reasonable suspicion to stop Pruitt for driving without headlights.
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Judge Roger B. Cosbey is unethical and bias toward African American who seeks justice in Title VII claims. He disrespected and used his authority to attempt to intimidate me into taking an unfair settlement and when I refused he proceeded to get my case dismissed and to deny me my Constitutional and Civil Rights. He disobeying several rules of law; specifically, by ruling on summary judgment motions against the Fed. R. Civ. P., without authority of Judge William C. Lee, without consent of the attorneys, and with conspiracy to commit “fraud on the court,” as he conspired with my former attorney. He proved to me that he is bias, unethical, unfair and unfit to be reappointed. In my opinion, he should be disbarred in 2013, for committing fraud on the court, which would make him ineligible for reinstatement in 2014. See docket 3:07 cv 629 where he rules on dispositive motions, knowing magistrates are not vested with that power (especially without consent), grants the defendant an unconscionable number of extensions, accepts my former attorney request for extension for dispositive motion knowing he was working with the opposition, and unbelievably grants the defendant another extension after he requested an extension after he missed the deadline. I know another attorney filed charges against him for bias in race discrimination case(s). I know what he did in my case before he voluntarily recused himself, I just do not know how many other innocent people have been stripped of their rights because of him. I say shame on him and no more of the same.
they are pushing these cases against lawyers too far. thought-crime.
vagueness cannot challenged, so let's write all laws vaguely and throw the constitution out the window.Even if the court is operating under a particular law, if they don't it they will change it to their liking. What a joke!!!
Two convictions becomes one conviction with exactly the same sentence, only it is not clear wheter or not that sentence will be 18 months, 120 months or 138 months. Actually if the guns were in a home, whether or not they were his, he is protected under the 2nd amendment. Jurors need to learn the law and the constitution before judging others. The cour5ts need to do this as well.
With all due respect, Rick, I think you probably would be making a mistake by going to law school. The job market for attorneys is so saturated, you may well find yourself unemployed and with a lot of debt. You mention law would be a good supplement to your skills. True. But employers unfortunately don't value that. You will find that a law degree may well pigeonhole you into an attorney slot and limit career options. If you have a good job now I would hold onto that. As an attorney, you may well end up making less with the aforementioned debt.