Opinions

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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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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  1. All the lawyers involved in this don't add up to a hill of beans; mostly yes-men punching their tickets for future advancement. REMF types. Window dressing. Who in this mess was a real hero? the whistleblower that let the public know about the torture, whom the US sent to Jail. John Kyriakou. http://www.nytimes.com/2013/01/26/us/ex-officer-for-cia-is-sentenced-in-leak-case.html?_r=0 Now, considering that Torture is Illegal, considering that during Vietnam a soldier was court-martialed and imprisoned for waterboarding, why has the whistleblower gone to jail but none of the torturers have been held to account? It's amazing that Uncle Sam's sunk lower than Vietnam. But that's where we're at. An even more unjust and pointless war conducted in an even more bogus manner. this from npr: "On Jan. 21, 1968, The Washington Post ran a front-page photo of a U.S. soldier supervising the waterboarding of a captured North Vietnamese soldier. The caption said the technique induced "a flooding sense of suffocation and drowning, meant to make him talk." The picture led to an Army investigation and, two months later, the court martial of the soldier." Today, the US itself has become lawless.

  2. "Brain Damage" alright.... The lunatic is on the grass/ The lunatic is on the grass/ Remembering games and daisy chains and laughs/ Got to keep the loonies on the path.... The lunatic is in the hall/ The lunatics are in my hall/ The paper holds their folded faces to the floor/ And every day the paper boy brings more/ And if the dam breaks open many years too soon/ And if there is no room upon the hill/ And if your head explodes with dark forbodings too/ I'll see you on the dark side of the moon!!!

  3. It is amazing how selectively courts can read cases and how two very similar factpatterns can result in quite different renderings. I cited this very same argument in Brown v. Bowman, lost. I guess it is panel, panel, panel when one is on appeal. Sad thing is, I had Sykes. Same argument, she went the opposite. Her Rooker-Feldman jurisprudence is now decidedly unintelligible.

  4. November, 2014, I was charged with OWI/Endangering a person. I was not given a Breathalyzer test and the arresting officer did not believe that alcohol was in any way involved. I was self-overmedicated with prescription medications. I was taken to local hospital for blood draw to be sent to State Tox Lab. My attorney gave me a cookie-cutter plea which amounts to an ALCOHOL-related charge. Totally unacceptable!! HOW can I get my TOX report from the state lab???

  5. My mother got temporary guardianship of my children in 2012. my husband and I got divorced 2015 the judge ordered me to have full custody of all my children. Does this mean the temporary guardianship is over? I'm confused because my divorce papers say I have custody and he gets visits and i get to claim the kids every year on my taxes. So just wondered since I have in black and white that I have custody if I can go get my kids from my moms and not go to jail?

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