Opinions

Opinions Nov. 1, 2011

November 1, 2011
7th Circuit Court of Appeals
Rose Acre Farms Inc. v. Columbia Casualty Co. and National Fire Insurance Co. of Hartford
11-1599
U.S. District Court, Southern District of Indiana, New Albany Division, Judge Sarah Evans Barker.
Civil. Affirms summary judgment for the insurers on whether they have to defend Rose Acre Farms in the antitrust complaint. The suit for which Rose Acre wants a defense makes no claim that the policy could be thought to cover.
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Opinions Oct. 31, 2011

October 31, 2011
Indiana Court of Appeals
Thomas J. Ostrowski and Phyllis Ostrowski v. Everest Healthcare Indiana, Inc., d/b/a Merrillville Dialysis Center, and Family Mobile Medical Services, Inc.
45A03-1012-CT-645
Civil tort. Affirms jury verdict in favor of defendants Everest Healthcare Indiana and Family Mobile Medical Services on Thomas Ostrowski’s suit for negligence against the building owner and the EMT’s employer after he was injured by a door opening and hitting his hand. The trial court did not err in giving the sudden emergency instruction or in permitting the defendants’ expert witness to testify. The lay witness did not improperly testify as an expert witness. 
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Opinions Oct. 28, 2011

October 28, 2011
Indiana Court of Appeals
Rick Gillespie, Dawn Gillespie and Rick's Towing and Maintenance, LLC v. Frank B. Niles and Kathryn Niles
49A05-1102-CT-70
Civil tort. Affirms denial of the Gillespies’ objection to the Nileses’ request for a pre-trial conference and refusal to dismiss the action under Indiana Trial Rule 41(E). Affirms grant of summary judgment for the Niles and denial of summary judgment for the Gillespies. The Gillespies failed to wait the required 15 days before selling Kathryn’s vehicle at auction. The trial court erred by granting summary judgment against the Gillespies individually as the judgment should be against Rick’s Towing only.
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Opinions Oct. 27, 2011

October 27, 2011
Indiana Court of Appeals
Joey Jennings v. State of Indiana
53A01-1010-CR-541
Criminal. Affirms conviction of Class B misdemeanor criminal mischief. The state presented sufficient evidence to prove that he was the person who damaged another man’s truck. Reverses his sentence of 360 days probation in addition to 180 days in prison with 150 suspended. Jennings’ term of imprisonment for the purposes of Indiana Code 35-50-3-1(b) includes not only the 30-day executed portion, but also the suspended term. The trial court sentence caused him to serve more than a year of combined imprisonment and probation, which violates the statute. Remands for the trial court to recalculate his probation, not to exceed 185 days.
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Opinions Oct. 26, 2011

October 26, 2011
Indiana Court of Appeals
Anthony D. Laster v. State of Indiana
02A03-1103-CR-91
Criminal. Affirms convictions of Class B felony burglary and four counts of Class B felony robbery, holding the trial court did not abuse its discretion in denying Laster’s motion for continuance. Remands to the trial court to revise sentence, holding that in light of the offender’s character and nature of offenses, a fully executed sentence on each count is not warranted.
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Opinions Oct. 25, 2011

October 25, 2011
7th Circuit Court of Appeals
United States of America v. Marlyn J. Barnes and Melvin B. Taylor
11-1261, 11-1602
U.S. District Court, Northern District of Indiana, Fort Wayne Division, Judge Theresa L. Springmann.
Criminal. Affirms the resentencing of Barnes to 292 months and Taylor to 188 months for conspiring to possess with intent to distribute more than 5 kilograms of cocaine. The District Court’s analysis evinces the perception of fair sentencing and reasonableness.
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Opinions Oct. 24, 2011

October 24, 2011
Indiana Court of Appeals
Christopher Allen Buchanan v. State of Indiana
82A01-1103-CR-139
Criminal. Affirms sentence for Class B felony child molesting, holding that trial court did not err in calculating the amount of credit time to which Buchanan was entitled and did not err in finding the age of the victim as an aggravator.
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Opinions October 21, 2011

October 21, 2011
Indiana Court of Appeals
James K. White and Wells Fargo Bank N.A. v. Susan Orth, Allen County Treasurer, and Lisbeth A. Blosser, Allen County Auditor

02A03-1101-MI-8
Miscellaneous. Affirms trial court’s decision to overrule Wells Fargo’s objection to the issuance of tax deeds, holding Allen County properly served the tax sale notices upon Wells Fargo. 
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Opinions Oct. 20, 2011

October 20, 2011
Indiana Court of Appeals
Beth Ann Johnson, Mother of: Emily Johnson, Deceased Minor Child v. Lance Jacobs, Steven J. Cummins, Stacy Cummings, Lawrence County Board of Aviation Commissioners, Tony Newbold, Lawrence Co. Comm.
47A01-1102-CT-35
Civil tort. Affirms summary judgment for all the defendants in Johnson’s suit for damages in daughter Emily’s wrongful death. Her ex-husband Eric’s intentional criminal acts were a superseding intervening cause between any alleged negligence of the defendants and Emily’s death.
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Opinions Oct. 19, 2011

October 19, 2011
Indiana Court of Appeals
Alan Massey v. State of Indiana
49A05-1012-PC-808
Post conviction. Affirms denial of petition for post-conviction relief. Even though the jury was improperly instructed regarding the elements of voluntary manslaughter, Massey wasn’t entitled to the voluntary manslaughter instruction because his girlfriend’s words ending their relationship do not constitute sufficient provocation to induce sudden heat. He also failed to carry his burden to show that the sentencing issue was significant.
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Opinions Oct. 18, 2011

October 18, 2011
7th Circuit Court of Appeals
Bruce Barton v. Zimmer Inc.
10-2212
U.S. District Court, Northern District of Indiana, Fort Wayne Division, Judge Theresa L. Springmann.
Civil. Affirms summary judgment for Zimmer Inc. on Barton’s claims for discrimination and retaliation in violation of the Age Discrimination in Employment Act and for interference with his right to reinstatement under the Family Medical Leave Act. Barton’s ADEA claims fail for lack of causation and any available remedy. There is also no evidence of retaliation, and he has no claim under FMLA because when Barton returned to work after his medical leave, the company assigned him equivalent duties without regard to his medical leave.
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Opinions Oct. 17, 2011

October 17, 2011
Indiana Court of Appeals
Michael Hooten v. State of Indiana (NFP)
49A04-1101-CR-11
Criminal. Affirms convictions of felony murder and Class A felony attempted murder.
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Opinions Oct. 14, 2011

October 14, 2011
Indiana Court of Appeals
Cedric Tharpe v. State of Indiana
49A04-1101-CR-24
Criminal. Affirms conviction of Class A felony attempted murder. Tharpe didn’t show the judge who presided over his case was biased or prejudiced, nor did he demonstrate his trial was unfair. The trial court didn’t abuse its discretion in denying his motion for continuance and there is sufficient evidence to support his conviction.
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Opinions Oct. 13, 2011

October 13, 2011
Indiana Court of Appeals
George Michael True v. State of Indiana
39A04-1102-CR-37
Criminal. Reverses conviction of Class A misdemeanor domestic battery. There was no serious evidentiary dispute about whether the battery was committed in the presence of the children. Instructing the jury that it could convict True of a Class A misdemeanor domestic battery instead of as a Class D felony improperly invited the jury to reach a “compromise” verdict. Remands for proceedings consistent with the opinion.
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Opinions Oct. 12, 2011

October 12, 2011
Indiana Court of Appeals
Julie Nunley, n/k/a Waldrath v. Jeremy A. Nunley
68A04-1105-DR-269
Domestic relation. Affirms that Jeremy Nunley is entitled to a reduction of his child support obligation due to the decrease in his income due to his incarceration for Class D felony nonsupport of a dependent. Declines to create an exception to the rules set forth in Clark and Lambert for individuals incarcerated for the crime of nonsupport of a dependent.
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Opinions Oct. 11, 2011

October 11, 2011
7th Circuit Court of Appeals
United States of America v. Roger Loughry, also known as Mayorroger
10-2967
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge William T. Lawrence
Criminal. Reverses District Court’s decision to allow admission as evidence “hard core” pornography without examining it or without explaining its reasoning under Rule 403. Holds that the material was highly inflammatory and held only minimal probative value, but created extreme prejudice against Loughry. Remands to the District Court for proceedings consistent with opinion.
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Opinions Oct. 10, 2011

October 10, 2011
The state and federal appellate courts are closed Monday in observance of Columbus Day.
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Opinions Oct. 7, 2011

October 7, 2011
Indiana Court of Appeals
James Fernbach v. State of Indiana
69A01-1103-CR-151
Criminal. Affirms 60-year sentence for two counts of Class A felony attempted murder, holding that the jury’s rejection of Fernbach’s insanity defense was not erroneous.
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Opinions Oct. 6, 2011

October 6, 2011
Indiana Supreme Court
Putnam County Sheriff v. Pamela Price
60S01-1012-CV-665
Civil. Reverses trial court’s denial of the Putnam County Sheriff’s motion to dismiss Price’s negligence action for failure to state a claim. A county sheriff’s department that neither owns, maintains or controls a county road does not owe a common law duty to warn the public of known hazardous conditions upon the roadway. Justices David and Dickson concur in result.
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Opinions Oct. 5, 2011

October 5, 2011
Indiana Court of Appeals
P.J. v. State of Indiana

49A05-1102-JV-121
Juvenile. Affirms restitution order following adjudication, after a guilty plea, as a delinquent child for committing what would be Class B felony burglary if committed by an adult. P.J. waived his right to have the juvenile court inquire into his ability to pay, as he has acknowledged such ability in his plea agreement.
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Opinions Oct. 4, 2011

October 4, 2011

Indiana Court of Appeals
Saba Tesfamariam v. Moghes Woldehaimanot
49A02-1009-DR-1050
Domestic relation. Affirms decree of dissolution of marriage, which awarded father Moghes Woldehaimanot full custody of the minor children. The trial court abused its discretion by failing to establish that mother Saba Tesfamariam’s interpreter was qualified and by failing to administer an oath to the interpreter to provide an accurate translation. The failure to establish the qualifications or to administer an oath is not a fundamental error, and the trial court’s errors in the instant case were not fundamental.

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Opinions Oct. 3, 2011

October 3, 2011
7th Circuit Court of Appeals
Kristine P. Purcell v. Bank of America
10-3975
U.S. District Court, Northern District of Indiana, Fort Wayne Division, Judge James T. Moody.
Civil. Reverses dismissal of Purcell’s common-law claims against the bank without prejudice to allow her to refile in state court. Remands with instructions to enter judgment for the bank on all of Purcell’s state and federal claims. Section 1681t(b)(1)(F) and Section 16811h(e)of 15 U.S.C. are compatible, and Section 1681(t)(b) would preempt Purcell’s state-law theories.
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Opinions Sept. 30, 2011

September 30, 2011
Indiana Supreme Court
Franklin Electric Company, Inc. v. Unemployment Insurance Appeals of the Indiana Dept. of Workforce Development
93S02-1102-EX-89
Agency appeal. Affirms determination of the liability administrative law judge that Franklin Electric Co. and its two newly created entities Franklin Electric Manufacturing and Franklin Electric Sales are a single employer. The manufacturing and sales entities did not acquire a distinct and segregable portion of Franklin Electric’s business, so they did not qualify as “employers” under the laws governing Indiana’s unemployment compensation arrangements.
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Opinions Sept. 29, 2011

September 29, 2011

7th Circuit Court of Appeals
Cedar Farm, Harrison County Inc. v. Louisville Gas and Electric Co.
10-2234
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge David F. Hamilton.
Civil. Affirms summary judgment for Louisville Gas and Electric on Cedar Farm’s attempt to eject Louisville Gas and Electric from its property and to terminate an oil and gas lease for violations of certain portions of the lease. The lease allows for a damages remedy and Cedar Farm hasn’t show that damages are inadequate to compensate for the harm to its property.

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Opinions Sept. 28, 2011

September 28, 2011
Indiana Supreme Court
Desmond Turner v. State of Indiana
49S00-0912-CR-565
Criminal. Affirms convictions of murder, criminal confinement, robbery and burglary, and the sentence of life in prison without parole for the murder convictions, plus a term of years for the other convictions. The trial court did not abuse its discretion in permitting firearms and tool mark examiner Michael Putzek’s testimony, and the admission of challenged testimony did not violate Indiana Evidence Rule 404(b). The trial court erred in admitting testimony on a statement made by Turner’s mother, but that does not require reversal.
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  1. I just wanted to point out that Congressman Jim Sensenbrenner, Senator Feinstein, former Senate majority leader Bill Frist, and former attorney general John Ashcroft are responsible for this rubbish. We need to keep a eye on these corrupt, arrogant, and incompetent fools.

  2. Well I guess our politicians have decided to give these idiot federal prosecutors unlimited power. Now if I guy bounces a fifty-dollar check, the U.S. attorney can intentionally wait for twenty-five years or so and have the check swabbed for DNA and file charges. These power hungry federal prosecutors now have unlimited power to mess with people. we can thank Wisconsin's Jim Sensenbrenner and Diane Feinstein, John Achcroft and Bill Frist for this one. Way to go, idiots.

  3. I wonder if the USSR had electronic voting machines that changed the ballot after it was cast? Oh well, at least we have a free media serving as vicious watchdog and exposing all of the rot in the system! (Insert rimshot)

  4. Jose, you are assuming those in power do not wish to be totalitarian. My experience has convinced me otherwise. Constitutionalists are nearly as rare as hens teeth among the powerbrokers "managing" us for The Glorious State. Oh, and your point is dead on, el correcta mundo. Keep the Founders’ (1791 & 1851) vision alive, my friend, even if most all others, and especially the ruling junta, chase only power and money (i.e. mammon)

  5. Hypocrisy in high places, absolute immunity handed out like Halloween treats (it is the stuff of which tyranny is made) and the belief that government agents are above the constitutions and cannot be held responsible for mere citizen is killing, perhaps has killed, The Republic. And yet those same power drunk statists just reel on down the hallway toward bureaucratic fascism.

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