Opinions

Opinions Nov. 22, 2011

November 22, 2011
Indiana Supreme Court
Lisa Gray v. State of Indiana

82S01-1106-CR-328
Criminal. Reinstates trial court’s guilty verdict on Gray’s charge of Class A misdemeanor possession of marijuana, rejecting the argument that insufficient evidence existed to support her conviction. Holds that the word of two police officers held more influence with the trial court than the testimony of Gray’s son, whom Gray appeared to be coaching during trial about how to answer questions.
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Opinions Nov. 21, 2011

November 21, 2011
Indiana Court of Appeals
Jim Norris v. Personal Finance
27A04-1104-SC-183
Small claim. Reverses trial court’s decision denying Norris relief, holding that the trial court erred in concluding that under Trial Rule 4.16, Norris’ parents – when served a notice of claim against Norris – had a duty to inform the court that Norris did not live with them.
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Opinions Nov. 18, 2011

November 18, 2011
Indiana Court of Appeals
David Marks and Karen Marks v. Northern Indiana Public Service Company
45A05-1011-CT-675
Civil tort. On petition for rehearing, affirms original decision in all respects, holding that the semi-trailer from which David Marks fell was owned by a subcontractor of a general contractor, and therefore Northern Indiana Public Service Co. is not liable for the accident.
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Opinions Nov. 17, 2011

November 17, 2011
Indiana Supreme Court
Indiana Spine Group, PC v. Pilot Travel Centers, LLC
93S02-1102-EX-90
Miscellaneous. Reverses decision by Worker’s Compensation Board dismissing as untimely Indiana Spine Group’s application for adjustment of claim. Holds that the Worker’s Compensation Act is silent on the question of the limitation period applicable to a medical provider’s claim seeking payment of outstanding bills for authorized treatment to an employer’s employee. Holds that the limitation period contained in the general statute of limitation controls. Remands for further proceedings consistent with opinion.
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Opinions Nov. 16, 2011

November 16, 2011
Indiana Court of Appeals
Green River Motel Management of Dale, LLC, et al. v. State of Indiana
74A05-1104-PL-169
Civil plenary. Affirms denial of Green River’s motion for summary judgment. A state action that merely alters the flow of traffic or causes access by a more circuitous route can’t give rise to a taking as a matter of law. Affirms on all other respects.
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Opinions Nov. 15, 2011

November 15, 2011
Indiana Court of Appeals
Jesse Puckett v. State of Indiana
90A02-1104-CR-369
Criminal. Reverses sentencing decision that required Puckett to serve his entire previously suspended four-year sentence after Puckett admitted to violating his probation for Class C felony child molesting. The trial judge’s statement of reasons for the sentence is problematic. Holds it is improper when revoking probation for a trial court to find that the defendant actually committed a more serious crime than the one or ones of which he or she was originally convicted. Remands for another hearing regarding the revocation of probation.
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Opinions Nov. 14, 2011

November 14, 2011
Indiana Court of Appeals
D.E. v. State of Indiana
49A02-1103-JV-319
Juvenile. Affirms adjudication as a delinquent through D.E.’s plea agreement. D.E. didn’t demonstrate that the waivers in the plea agreement didn’t comport with Ind. Code 31-32-5-1. Placement of D.E. in a juvenile correction facility was not an abuse of discretion.
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Opinions Nov. 10, 2011

November 10, 2011
7th Circuit Court of Appeals
United States of America v. Dale Russell
10-2259
U.S. District Court, Southern District of Indiana, Indianapolis Division. Judge Sarah Evans Barker.
Criminal. Affirms Dale Russell’s convictions of producing sexually explicit photographs of his minor daughters, which later crossed international boundaries, and his 38-year prison sentence.
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Opinions Nov. 9, 2011

November 9, 2011
Indiana Court of Appeals
In Re: The Paternity of M.F.; N.F. v. J.T.
10A01-1101-JP-15
Juvenile. Reverses portion of the order finding mother N.F. in contempt because she presented a prima facie case that the trial court abused its discretion. Reverses order that mother pay attorney fees based on the contempt finding. Affirms portion of the order that requires N.F. buy a plane ticket for M.F. to visit her father in Florida. Judge Kirsch dissents without opinion.
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Opinions Nov. 7, 2011

November 7, 2011
7th Circuit Court of Appeals
Jessica J. Jelinek v. Michael J. Astrue, Commissioner of Social Security
10-3340
U.S. District Court, Northern District of Indiana, South Bend Division, Judge Christopher A. Nuechterlein.
Civil. Reverses judgment of an administrative law judge that Jelinek’s collective mental and physical impairments were severe but not disabling. Reverses and remands for further proceedings on mother’s request for supplemental security income for daughter.
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Opinions Nov. 4, 2011

November 4, 2011
Indiana Court of Appeals
Randall Perkins v. Jayco, Inc.
93A02-1104-EX-361
Miscellaneous. Affirms Worker’s Compensation Board’s affirmation of a single hearing member, who had concluded that Perkins’ employer is not responsible for providing palliative care to Perkins. Holds that the board erred in concluding that a finding that Perkins had reached maximum medical improvement allows for an inference that future treatment is not needed, but held that the error was harmless as a doctor’s report indicated future medical treatments would not be causally related to Perkins’ work injury.
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Opinions Nov. 3, 2011

November 3, 2011
Indiana Court of Appeals
Michael Dodd and Katherine Dodd v. American Family Mutual Insurance Company
12A02-1010-CT-1414
Civil tort. Affirms in part and reverses in part summary judgment for American Family. There are disputes of material fact as to whether American Family effectively rescinded the policy and if it did not, whether it breached the policy by denying the Dodds’ claims. The trial court did not err by granting American Family’s motion for summary judgment on the claims for punitive damages and intentional infliction of emotional distress. Remands for further proceedings.
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Opinions Nov. 2, 2011

November 2, 2011
Indiana Court of Appeals
Monte Murphy v. State of Indiana (NFP)
18A02-1009-CR-1040
Criminal. Affirms convictions of three counts of receiving a ballot, entered as Class A misdemeanors.
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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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  1. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  2. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  3. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

  4. When I hear 'Juvenile Lawyer' I think of an attorney helping a high school aged kid through the court system for a poor decision; like smashing mailboxes. Thank you for opening up my eyes to the bigger picture of the need for juvenile attorneys. It made me sad, but also fascinated, when it was explained, in the sixth paragraph, that parents making poor decisions (such as drug abuse) can cause situations where children need legal representation and aid from a lawyer.

  5. Some in the Hoosier legal elite consider this prayer recommended by the AG seditious, not to mention the Saint who pledged loyalty to God over King and went to the axe for so doing: "Thomas More, counselor of law and statesman of integrity, merry martyr and most human of saints: Pray that, for the glory of God and in the pursuit of His justice, I may be trustworthy with confidences, keen in study, accurate in analysis, correct in conclusion, able in argument, loyal to clients, honest with all, courteous to adversaries, ever attentive to conscience. Sit with me at my desk and listen with me to my clients' tales. Read with me in my library and stand always beside me so that today I shall not, to win a point, lose my soul. Pray that my family may find in me what yours found in you: friendship and courage, cheerfulness and charity, diligence in duties, counsel in adversity, patience in pain—their good servant, and God's first. Amen."

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