Opinions Aug. 4, 2015

August 4, 2015
Indiana Supreme Court
David J. Markey v. Estate of Frances S. Markey, Deceased; Stephen L. Routson, Personal Representative Under the Last Will and Testament of Frances S. Markey, Deceased et al
Estate. Reverses summary judgment in favor of the defendants. Agrees with David Markey that his claim for breach of contract to make and not revoke mutual wills is a claim governed by the probate code. Remands to determine if Markey was a “creditor” who was “known or reasonably ascertainable” and therefore timely filed his claim.  

Opinions Aug. 3, 2015

August 3, 2015
7th Circuit Court of Appeals
Louise Milan v. Billy Bolin, in his individual capacity as Evansville Police Department Chief, et al.
Appeal from the U.S. District Court, Southern District of Indiana, Evansville Division
Judge William Lawrence
Civil. Affirms denial of summary judgment in favor of the Evansville police defendants on Louise Milan’s claim of excessive use of force resulting from a SWAT team raid on her house initiated with the use of flash-bang grenades. Denial of the defendants’ motion for summary judgment is reasonable considering the use of flash bangs, the skimpy basis for the search and its prematurity, and the failure to conduct a more extensive investigation.

Opinions July 31, 2015

July 31, 2015
Indiana Supreme Court
The following opinion was posted after IL deadline Thursday
In Re the Visitation of L-A.D.W., R.W. v. M.D. and W.D.
Domestic. Affirms trial court grant of grandparent visitation, finding visitation in the child’s best interests and that the trial court did not abuse its discretion in setting a schedule it deemed occasional and temporary. Justice Steven David wrote the majority opinion joined by Justices Brent Dickson and Mark Massa. Chief Justice Loretta Rush concurred, but wrote separately to caution that a reliance upon deference to the trial court insufficiently protects a parent’s constitutional right to guide a child’s upbringing, but in this case, the visitation order did not unduly infringe on father’s parental rights. Justice Robert Rucker joined Rush’s concurring opinion.

Opinions July 30, 2015

July 30, 2015
Indiana Supreme Court
Wellpoint, Inc. (F/K/A Anthem, Inc.) and Anthem Insurance Companies, Inc. v. National Union Fire Insurance Company of Pittsburgh, PA, AIG Europe (U.K.) Limited, et al
Civil plenary. Grants petition for rehearing to modify the Supreme Court’s previous opinion. Finds its reversal should be clarified to grant summary judgment in favor of Anthem but only on the issues raised in Continental’s motion of summary judgment. Holds Continental did not waive its unasserted defenses.

Opinions July 29, 2015

July 29, 2015
7th Circuit Court of Appeals
United States of America v. Robert L. Lee
Appeal from the U.S. District Court for the Northern District of Indiana, South Bend Division.
Judge Robert L. Miller
Affirms revocation of supervised release for violation of terms due to commission of a crime. Rejects Lee’s argument that due process under the Fifth Amendment and Federal Rule of Criminal Procedure 32.1 requires citation to a specific statute to provide written notice of the alleged violation.

Opinions July 28, 2015

July 28, 2015
7th Circuit Court of Appeals
Grant E. Bentrud v. Bowman Heintz Boscia & Vician, P.C.
Appeal from the U.S. District Court, Southern District of Indiana, Indianapolis Division
Judge William Lawrence.
Civil. Affirms grant of summary judgment in favor of Bowman Heintz. Finds Bowman Heintz did not violate the Federal Debt Collections Practices Act for filing a second motion for summary judgment after the 30-day deadline to initiate arbitration had passed.

Opinions July 27, 2015

July 27, 2015
7th Circuit Court of Appeals
The following opinion was issued after IL deadline Friday
Katherine Cerajeski, Guardian for Walter Cerajeski v. Greg Zoeller, Attorney General of the State of Indiana, et al.
Appeal from the United States District Court for the Southern District of Indiana.
Judge Jane Magnus-Stinson
Civil. Reverses dismissal of Cerajeski’s claim as moot, holding that she is entitled to legal fees because the suit led to a change in state law that enabled her to obtain damages sought in the litigation. Remands for a determination of reasonable legal fees, expressing a tentative view that the amount sought for the prior appeal –  $258,462.50 for 375.75 hours – is excessive.

Opinions July 24, 2015

July 24, 2015
Indiana Court of Appeals
Antyon Buford v. State of Indiana
Criminal. Reverses convictions of Class A felony dealing cocaine, Class B felony unlawful possession of a firearm by a serious violent felon, and Class D felony maintaining a common nuisance. A warrant on which the search of Buford’s residence was premised was not supported by probable cause. Remands for proceedings.

Opinions July 23, 2015

July 23, 2015
7th  Circuit Court of Appeals
The following opinion was issued after IL deadline Wednesday.
United States of America v. Joseph B. Miller
Appeal from the United States District Court for the Northern District of Indiana.
Judge James T. Moody.
Criminal. Affirms bank robbery conviction, holding that neither an FBI agent’s alleged misstatements nor defense counsel’s purported errors in failing to suppress certain evidence affected the outcome of the trial.

Opinions July 22, 2015

July 22, 2015
7th Circuit Court of Appeals
The following opinions were issued after IL deadline Tuesday.
United States of America v. Michael B. McClellan
Appeal from the U.S. District Court for the Northern District of Indiana, Hammond Division; Chief Judge Philip P. Simon.
Criminal. Affirms convictions of harboring an illegal alien, three counts of mail fraud, and one count of engaging in a monetary transaction involving criminally derived property. The evidence presented to the jury was sufficient for the convictions, and jury instructions concerning the harboring count did not constitute plain error.

Opinions July 21, 2015

July 21, 2015
Indiana Supreme Court
In the Matter of: Steven J. Ouellette
Attorney discipline. Disbars Steven J. Ouellette for converting $8,725 in client funds and failing to cooperate with the disciplinary process. Ouellette, who currently was suspended indefinitely in a separate disciplinary matter, violated Rules of Professional Conduct 1.15(a), 8.1(b), 8.4(b) and 8.4(c). Respectively, those rules violations are for failing to hold client property in trust; failing to respond to disciplinary authorities; committing a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness; and conduct involving dishonesty, fraud, deceit or misrepresentation.

Opinions July 20, 2015

July 20, 2015
Indiana Court of Appeals
Charles R. Ferguson v. The Estate of Lera V. Ferguson
Estate. Reverses on interlocutory appeal an order that Charles R. Ferguson post a bond in excess of $1.1 million, representing the amount of his claim against the estate plus administrative costs in order to stay the sale of the family farm. Finding the trial court abused its discretion in ordering a bond in the amount of a claim against the estate plus costs, the panel remands with instructions that bond be posted at $60,000, the amount of administrative costs.

Opinions July 17, 2015

July 17, 2015
Indiana Tax Court
Richard D. Foster v. Indiana Department of State Revenue (mem. dec.)
Tax. Grants Indiana Department of State Revenue’s motion to dismiss. Foster appealed the revenue department’s seizure of his tax refunds and vehicles after he pled guilty to possession of marijuana. However, the Tax Court concluded it lacked subject matter jurisdiction since Foster had not taken his appeal from a final determination of the revenue department.

Opinions July 16, 2015

July 16, 2015
Indiana Tax Court
Indianapolis Public Transportation Corporation v. Department of Local Government Finance
Tax. Denies Department of Local Government Finance’s motion for judgment on the pleadings. Indianapolis Public Transportation Corp. (IndyGo) has standing to appeal the DLGF’s adjustment of its budget because under the facts of the case an “appeal” could not have contemplated adjustments made to the budget that are at issue in the case.

Opinions July 15, 2015

July 15, 2015
Indiana Court of Appeals
Robert Seal v. State of Indiana
Criminal. Affirms convictions of two counts of Class A felony child molesting; two counts of Class B felony incest; and one count of Class B sexual misconduct with a minor. Finds police’s failure to capture the audio on the recordings of the victims’ interviews does not violate Seal’s due process rights. Rules trial court did not abuse its discretion in instructing the jury that time is not an element of the offenses. Concludes the continuous crime doctrine does not apply.

3 things to know about lawyer services disclaimers

July 15, 2015
James Bell, Jessica Whelan
Prospective clients routinely and increasingly turn to the Internet to find a lawyer. Therefore, the information you, as a lawyer with a Web presence, put out there is important to the success of your law practice.

Opinions July 14, 2015

July 14, 2015
Indiana Court of Appeals
Parkview Hospital, Inc. v. John J. Wernert, in his official capacity as Secretary of the Indiana Family and Social Services Administration, and The Methodist Hospitals, Inc.
Civil plenary. Affirms trial court ruling in favor of Indiana Family and Social Service Administration’s denial of Medicaid disproportionate share payments to Parkview Hospital. The decision of the FSSA secretary was not arbitrary, capricious, or unsupported by substantial evidence, and there was no contract or agreement of material terms and conditions regarding disproportionate share hospital payments supporting a forfeiture claim.

Opinions July 13, 2015

July 13, 2015
7th Circuit Court of Appeals
United States of America v. Joshua R. Mackin
U.S. District Court, Northern District of Indiana, Fort Wayne Division;
Judge Theresa Springmann
Criminal. Vacates conviction of being a felon in possession of a firearm and remands for further proceedings. Finds the government’s failure to produce the correct and complete continuity slip until mid-trial violated Federal Rule of Criminal Procedure 16. Agrees with defense that the incomplete slip presented during discovery was the basis of the defendant’s trial strategy and his decision not to seek a plea agreement.

Opinions July 10, 2015

July 10, 2015
Indiana Supreme Court
In the Matter of: Tenneil E. Selner
Attorney discipline. Suspends Tenneil E. Selner for three years without automatic reinstatement for her federal conviction of distribution of pseudoephedrine to participants in a methamphetamine ring. Justices approved the conditional agreement for discipline by a 4-1 vote, with Justice Dickson dissenting, believing Selner’s conduct demonstrated unfitness.

Opinions July 9, 2015

July 9, 2015
7th Circuit Court of Appeals
The following opinion was posted Wednesday after IL deadline
Carlene M. Craig, et al. v. FedEx Ground Package System, Inc.
Appeal from U.S. District Court, Northern District of Indiana, South Bend Division;
Judge Robert L. Miller, Jr.
Civil. Reverses multi-district litigation court’s grant of summary judgment to FedEx and remands with instructions to enter summary judgment in favor of plaintiffs, the Kansas drivers. The drivers are employees of FedEx rather than independent contractors under the Kansas Wage Payment Act, the court ruled. Proceedings may include remand to the Kansas District Court for a determination of damages.

Opinions July 8, 2015

July 8, 2015
7th Circuit Court of Appeals
Choice Hotels International, Inc. v. Anuj Grover, Arjun Grover and Dharam Punwani

Appeal from the U.S. District Court, Northern District of Indiana, Hammond Division;
Judge Joseph S. Van Bokkelen
Civil. Affirms denial of motion for relief from judgment. Finds the investors cannot have the judgment set aside because their attorney failed to protect their interests. Instead they should seek remedy through a malpractice action.

Opinions July 7, 2015

July 7, 2015
Indiana Court of Appeals
Bryan A. Cox v. State of Indiana
Criminal. Affirms 15-year aggregate executed sentence for Class B felony dealing cocaine and adjudication as a habitual offender. The doctrine of amelioration does not apply to Cox’s habitual offender sentence enhancement. Cox argued that he should have been sentenced under a more lenient amended habitual offender statute effective July 1, 2014, but his crime occurred before this, and the Legislature clearly did not intend for the doctrine of amelioration to apply to the amended statute.

Opinions July 6, 2015

July 6, 2015
7th Circuit Court of Appeals
Corre Opportunities Fund, LP, et al., v. Emmis Communications Corp.
Civil. Affirms ruling against Corre on a complaint that Emmis owed some $34 million in unpaid dividends to owners of preferred stock in the company. Under Indiana’s unique law allowing corporations to vote their shares, Emmis had authority to vote shares that the preferred stock owners claimed were outstanding.  

Opinions July 2, 2015

July 2, 2015
7th Circuit Court of Appeals
The following opinions were issued after IL deadline Wednesday.

U.S.A. v. Willie J. Harris
U.S. District Court, Northern District of Indiana, Hammond Division, Judge Philip P. Simon
Criminal. Affirms convictions of fraud, conspiracy to commit fraud with identification documents, production and trafficking in counterfeit devices, and aggravated identity theft. Finds a notebook taken from Harris’ truck was admissible at trial and the evidence was sufficient to support his convictions. Also finds the District Court did not err in applying sentencing enhancements.

Opinions 7/1/15

July 1, 2015

7th Circuit Court of Appeals
The following opinion was issued after IL deadline Tuesday.
David Lawson v. Sun Microsystems, Inc.
13-1502 and 13-1503
U.S. District Court, Southern District of Indiana, Indianapolis Division, Chief Judge Richard Young
Civil. Reverses jury award to Lawson for $1.5 million and remands with instructions to enter judgment for Sun Microsystems. Finds the employee compensation plan that was instituted when Sun acquired StorageTek Inc., is unambiguous and Lawson is not entitled to the jury award of $1.5 million.

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  1. I have an open CHINS case I failed a urine screen I have since got clean completed IOP classes now in after care passed home inspection my x sister in law has my children I still don't even have unsupervised when I have been clean for over 4 months my x sister wants to keep the lids for good n has my case working with her I just discovered n have proof that at one of my hearing dcs case worker stated in court to the judge that a screen was dirty which caused me not to have unsupervised this was at the beginning two weeks after my initial screen I thought the weed could have still been in my system was upset because they were suppose to check levels n see if it was going down since this was only a few weeks after initial instead they said dirty I recently requested all of my screens from redwood because I take prescriptions that will show up n I was having my doctor look at levels to verify that matched what I was prescripted because dcs case worker accused me of abuseing when I got my screens I found out that screen I took that dcs case worker stated in court to judge that caused me to not get granted unsupervised was actually negative what can I do about this this is a serious issue saying a parent failed a screen in court to judge when they didn't please advise

  2. I have a degree at law, recent MS in regulatory studies. Licensed in KS, admitted b4 S& 7th circuit, but not to Indiana bar due to political correctness. Blacklisted, nearly unemployable due to hostile state action. Big Idea: Headwinds can overcome, esp for those not within the contours of the bell curve, the Lego Movie happiness set forth above. That said, even without the blacklisting for holding ideas unacceptable to the Glorious State, I think the idea presented above that a law degree open many vistas other than being a galley slave to elitist lawyers is pretty much laughable. (Did the law professors of Indiana pay for this to be published?)

  3. Paul Hartman of Burbank, Oh who is helping Sister Fuller with this Con Artist Kevin Bart McCarthy scares Sister Joseph Therese, Patricia Ann Fuller very much that McCarthy will try and hurt Patricia Ann Fuller and Paul Hartman of Burbank, Oh or any member of his family. Sister is very, very scared, (YES, I AM) This McCarthy guy is a real, real CON MAN and crook. I try to totall flatter Kevin Bart McCARTHY to keep him from hurting my best friends in this world which are Carolyn Rose and Paul Hartman. I Live in total fear of this man Kevin Bart McCarthy and try to praise him as a good man to keep us ALL from his bad deeds. This man could easy have some one cause us a very bad disability. You have to PRAISAE in order TO PROTECT yourself. He lies and makes up stories about people and then tries to steal if THEY OWN THRU THE COURTS A SPECIAL DEVOTION TO PROTECT, EX> Our Lady of America DEVOTION. EVERYONE who reads this, PLEASE BE CAREFUL of Kevin Bart McCarthy of Indianapolis, IN My Phone No. IS 419-435-3838.

  4. Joe, you might want to do some reading on the fate of Hoosier whistleblowers before you get your expectations raised up.

  5. I had a hospital and dcs caseworker falsify reports that my child was born with drugs in her system. I filed a complaint with the Indiana department of health....and they found that the hospital falsified drug screens in their investigation. Then I filed a complaint with human health services in Washington DC...dcs drug Testing is unregulated and is indicating false positives...they are currently being investigated by human health services. Then I located an attorney and signed contracts one month ago to sue dcs and Anderson community hospital. Once the suit is filed I am taking out a loan against the suit and paying a law firm to file a writ of mandamus challenging the courts jurisdiction to invoke chins case against me. I also forwarded evidence to a u.s. senator who contacted hhs to push an investigation faster. Once the lawsuit is filed local news stations will be running coverage on the situation. Easy day....people will be losing their jobs soon...and judge pancol...who has attempted to cover up what has happened will also be in trouble. The drug testing is a kids for cash and federal funding situation.