Opinions

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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Opinions Jan. 31, 2012

January 31, 2012
7th Circuit Court of Appeals
Dale J. Atkins v. Michael Zenk
11-1891
Civil. Affirms U.S. District Court’s denial of habeas corpus petition, holding Atkins did not prove his claim that he was deprived of his Sixth Amendment right to effective assistance of trial counsel.
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Opinions Jan. 30, 2012

January 30, 2012
Indiana Court of Appeals
State of Indiana v. Johnnie S. McCaa
56A04-1107-CR-341
Criminal. Reverses trial court’s grant of McCaa’s motion to suppress evidence, holding that due to the unusual circumstances of an initial traffic stop, police did not err in asking McCaa to drive his truck to another location, where he ultimately failed field sobriety tests.
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Opinions Jan. 27, 2012

January 27, 2012
Indiana Court of Appeals
Robert Holland, A Concerned Citizen for the Redevelopment of Gary v. Richard Steele, Barbara Steele, First Midwest Bank, As Successor Trustee By Way of Merger to Bank Calumet, N.A., et al.
45A03-1102-PL-84
Civil plenary. Affirms the trial court’s determination that Holland was not entitled to summary judgment on his quiet title claim, and grant of summary judgment to the bank on its trespass and slander of title claims. The trial court properly found that Holland had filed a frivolous lawsuit and awarded appropriate attorney fees. On cross-appeal, the appellate court denied the bank’s request for appellate attorney fees.
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Opinions Jan. 26, 2012

January 26, 2012
Indiana Court of Appeals
Jeff Reeves v. Citizens Financial Services
93A02-1107-EX-604
Agency appeal. Affirms Worker’s Compensation Board’s decision that Reeves had reached maximum medical improvement, had a permanent partial impairment of five percent and wasn’t entitled to ongoing palliative care. Reeves failed to identify what type of care he should receive and the undisputed evidence does not show that palliative care limits the extent of his impairment.
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Opinions Jan. 25, 2012

January 25, 2012
Indiana Court of Appeals
Timothy Long v. State of Indiana
49A02-1105-CR-381
Criminal. Affirms sentence for Class A misdemeanor operating a vehicle while intoxicated and being a habitual substance offender. Because the master commissioner presided at Long’s guilty plea hearing, and not at a criminal trial, she did not have the authority to enter a final judgment on Long’s sentence. Marion Superior Judge Linda Brown did not err by rejecting the master commissioner’s sentence and imposing her own sentence.
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Opinions Jan. 24, 2012

January 24, 2012
Indiana Supreme Court
Antoine Hill v. State of Indiana
45S03-1105-PC-283
Post conviction. Holds that the appropriate standard for judging the performance of Post-Conviction Rule 2 counsel is the standard set forth in Baum v. State. Further holds that Post-Conviction Rule 2 counsel in this case did not violate Baum because she represented the defendant in a procedurally fair setting which resulted in a judgment of the court. Justice Sullivan concurs with separate opinion; Justice Rucker dissents.
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Opinions Jan. 20, 2012

January 20, 2012
Indiana Supreme Court
Indiana Dept. of Insurance, Indiana Patient's Compensation Fund v. Robin Everhart, Personal Rep. of the Estate of James K. Everhart, Jr.
84S01-1105-CV-282
Civil. Affirms award of statutory maximum of $1 million in excess damages from the Indiana Patient’s Compensation Fund to Robin Everhart. Does not see any grounds on which to reduce the trial court’s award of $1 million in excess damages, so deciding whether to extend or halt Cahoon’s advance would seem unnecessary at best. The fund was not entitled to a set-off.
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Opinions Jan. 19, 2012

January 19, 2012
Indiana Supreme Court
Chrysler Group, LLC v. Review Board of the Indiana Dept. of Workforce Development and T.A., et al.
93S02-1109-EX-565
Agency appeal. Affirms award of benefits to Chrysler employees offered a buyout. By Chrysler’s own words — to Congress and its own employees — Enhanced Voluntary Termination of Employment Program was part of a company-wide effort intended to avert twenty-nine manufacturing plant closures, twenty-two parts depot closures, and 53,000 layoffs. The board’s conclusion on this issue of ultimate fact was reasonable.
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Opinions Jan. 18, 2012

January 18, 2012
Indiana Supreme Court
A.T. v. State of Indiana
49S02-1201-JV-26
Juvenile. Reverses trial court’s dispositional order and remands with instructions to vacate that portion of its order committing A.T. to the Department of Correction until his 18th birthday. Because A.T. does not meet the criteria of Indiana Code 31-37-19-9(b), a determinate commitment under that section may not be imposed.
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Opinions Jan. 17, 2012

January 17, 2012
7th Circuit Court of Appeals
Lebamoff Enterprises v. Alex Hurley, in his official capacity as chairman of the Indiana Alcohol and Tobacco Commission
11-1362
Southern District of Indiana, Indianapolis Division
U.S. Judge Jane Magnus-Stinson
Civil. Affirms District judge’s grant of summary judgment for the state defendants, ruling against a Fort Wayne area wine retailer’s constitutional challenge to a state law that prevents retailers from shipping wine to consumers via a motor carrier. The appellate panel found that the state statute is not preempted by federal law. Judge David Hamilton issued a separate concurring opinion.
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Opinions Jan. 13, 2012

January 13, 2012
7th Circuit Court of Appeals
Kevin Harris v. Warrick County Sheriff’s Department
10-3706
U.S. District Court, Southern District of Indiana, Evansville Division, Chief Judge Richard Young.
Civil. Affirms District Court’s entry of summary judgment for the sheriff’s department in a case where a deputy sheriff’s probationary employment was terminated based on violations of standard operating procedures, failure to follow orders and insufficient commitment to the job. Harris’s circumstantial evidence of discrimination falls far short of supporting an inference that he was terminated because of his race.
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Opinions Jan. 12, 2012

January 12, 2012
7th Circuit Court of Appeals
United States of America v. Michael Redmond and Charles Avery Jr.
10-1947, 10-3914
U.S. District Court, Southern District of Indiana, Evansville Division, Chief Judge Richard L. Young.
Criminal. Affirms denial of Avery’s request to withdraw his guilty plea to crack cocaine distribution, the calculation of the crack cocaine quantity attributed to him and his sentence. Remands for the District Court to reconsider Redmond’s sentence following a guilty plea to conspiracy to possess with intent to distribute in excess of 50 grams of cocaine base in light of United States v. Corner.
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Opinions Jan. 11, 2012

January 11, 2012
Indiana Court of Appeals
Daniel E. Serban v. State of Indiana
02A03-1106-CR-285
Criminal. Declines to revise Serban’s 11-year sentence following guilty plea to Class C felony corrupt business influence and Class D felony theft. Serban failed to demonstrate his sentence is inappropriate, and his stealing from his clients injured not only them, but also the legal profession.
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Opinions Jan. 10, 2012

January 10, 2012
Indiana Supreme Court
Sarah Haag, Gordon Haag and Cathy Haag; Molly Kruger, William Kruger, III, and Katherine F. Kruger, et al. v. Mark Castro, The Indiana Youth Soccer Association, Virginia Surety Company, Inc., et al.
29S04-1102-CT-118
Civil tort. Affirms summary judgment in favor of Virginia Surety, the insurer of Indiana Youth Soccer Association, in a lawsuit brought by injured players seeking a declaration that the insurer provide coverage for an accident involving a Carmel youth soccer team while they were in Colorado. Because the van in which players were traveling when the accident occurred was not being used in the business of the association – a condition for coverage under the governing association’s business auto-insurance policy at issue – the injured players may not recover. Justice Dickson dissents; Justice David did not participate.
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Opinins Jan. 9, 2012

January 9, 2012
Indiana Court of Appeals
Javon L. Bonner v. State of Indiana (NFP)
20A03-1107-CR-330
Criminal. Affirms conviction of and sentence for Class A felony dealing in cocaine and convictions for Class C felony operating a vehicle with a lifetime suspension and Class A misdemeanor resisting law enforcement.
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Opinions Jan. 6, 2012

January 6, 2012
Indiana Court of Appeals
Michael Woodson v. State of Indiana
49A05-1106-CR-306
Criminal. Reverses two fraud convictions on grounds that trial court erred in denying a motion to suppress evidence, finding that the evidence was improperly seized after a search without adequate reasonable suspicion.
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Opinions Jan. 5, 2012

January 5, 2012
Indiana Court of Appeals
John C. Cole, Jr. v. State of Indiana (NFP)
49A05-1102-PC-67
Post conviction. Affirms denial of petition for post-conviction relief.
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Opinions Jan. 4, 2012

January 4, 2012
Indiana Court of Appeals
In the Matter of the Estate of Florian T. Latek; Nicholas G. Grapsas, et al. v. Gerald Ronneau
64A05-1103-ES-112
Estate, supervised. Affirms denial of Grapsas and Padezan’s challenge to the trial court order denying their motion to dismiss a petition for probate of will and for issuance of letters testamentary filed in the Porter Superior Court and a separate order admitting to probate the last will and testament of Florian Latek. Indiana adheres to the majority rule, and under that rule, the Illinois court’s denial of Latek’s will to probate because it failed to comply with that state’s statutory execution requirements has no effect on the subsequent admission and probate of Latek’s will in Indiana as it concerns the disposition of real property located in Indiana.
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Opinions Jan. 3, 2012

January 3, 2012
7th Circuit Court of Appeals
United States v. Jason Smith
Northern District of Indiana, South Bend Division. U.S. Judge Robert Miller, Jr.
11-2016
Criminal. Affirms District Court’s denial of motion to suppress evidence and motion for acquittal for a man convicted of being a felon in possession of a firearm, possessing crack cocaine with intent to deliver and possessing a firearm in furtherance of a drug transaction. The court rejected arguments that Jason Smith didn’t commit a traffic infraction and that the government constructively amended his indictment about when the traffic stop occurred.
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Opinions Dec. 30, 2011

December 30, 2011
Indiana Court of Appeals
Jeremy L. Peters v. State of Indiana
43A05-1103-CR-144
Criminal. Affirms conviction of and sentence for Class B felony unlawful possession of a firearm by a serious violent felon, holding that the use of Peters’ post-arrest, pre-Miranda silence during the state’s case-in-chief was not fundamental error because the evidence of his guilt was strong, the references to his silence were brief, and the references came amidst the narrative explaining the events after the crime.
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Opinions Dec. 29, 2011

December 29, 2011
Indiana Supreme Court
State of Indiana v. Economic Freedom Fund, FreeEats.com, Inc., Meridian Pacific, Inc., and John Does 3-10
07S00-1008-MI-411
Miscellaneous. Reverses trial court’s grant of preliminary injunction in favor of FreeEats, holding that the court erred in finding FreeEats had a reasonable likelihood of success on its claim that the live-operator provision of the Indiana Autodialer Law violates Article 1, Section 9 of the Indiana Constitution. Remands for further proceedings. Justice Frank Sullivan dissented, writing that the application of the live-operator requirement in the present case imposes a material burden on political speech in violation of Art. I, Section 9 of the Indiana Constitution, and that the application of this requirement violates the First Amendment to the United States Constitution.
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  1. State Farm is sad and filled with woe Edward Rust is no longer CEO He had knowledge, but wasn’t in the know The Board said it was time for him to go All American Girl starred Margaret Cho The Miami Heat coach is nicknamed Spo I hate to paddle but don’t like to row Edward Rust is no longer CEO The Board said it was time for him to go The word souffler is French for blow I love the rain but dislike the snow Ten tosses for a nickel or a penny a throw State Farm is sad and filled with woe Edward Rust is no longer CEO Bambi’s mom was a fawn who became a doe You can’t line up if you don’t get in a row My car isn’t running, “Give me a tow” He had knowledge but wasn’t in the know The Board said it was time for him to go Plant a seed and water it to make it grow Phases of the tide are ebb and flow If you head isn’t hairy you don’t have a fro You can buff your bald head to make it glow State Farm is sad and filled with woe Edward Rust is no longer CEO I like Mike Tyson more than Riddick Bowe A mug of coffee is a cup of joe Call me brother, don’t call me bro When I sing scat I sound like Al Jarreau State Farm is sad and filled with woe The Board said it was time for him to go A former Tigers pitcher was Lerrin LaGrow Ursula Andress was a Bond girl in Dr. No Brian Benben is married to Madeline Stowe Betsy Ross couldn’t knit but she sure could sew He had knowledge but wasn’t in the know Edward Rust is no longer CEO Grand Funk toured with David Allan Coe I said to Shoeless Joe, “Say it ain’t so” Brandon Lee died during the filming of The Crow In 1992 I didn’t vote for Ross Perot State Farm is sad and filled with woe The Board said it was time for him to go A hare is fast and a tortoise is slow The overhead compartment is for luggage to stow Beware from above but look out below I’m gaining momentum, I’ve got big mo He had knowledge but wasn’t in the know Edward Rust is no longer CEO I’ve travelled far but have miles to go My insurance company thinks I’m their ho I’m not their friend but I am their foe Robin Hood had arrows, a quiver and a bow State Farm has a lame duck CEO He had knowledge, but wasn’t in the know The Board said it was time for him to go State Farm is sad and filled with woe

  2. The ADA acts as a tax upon all for the benefit of a few. And, most importantly, the many have no individual say in whether they pay the tax. Those with handicaps suffered in military service should get a pass, but those who are handicapped by accident or birth do NOT deserve that pass. The drivel about "equal access" is spurious because the handicapped HAVE equal access, they just can't effectively use it. That is their problem, not society's. The burden to remediate should be that of those who seek the benefit of some social, constructional, or dimensional change, NOT society generally. Everybody wants to socialize the costs and concentrate the benefits of government intrusion so that they benefit and largely avoid the costs. This simply maintains the constant push to the slop trough, and explains, in part, why the nation is 20 trillion dollars in the hole.

  3. Hey 2 psychs is never enough, since it is statistically unlikely that three will ever agree on anything! New study admits this pseudo science is about as scientifically valid as astrology ... done by via fortune cookie ....John Ioannidis, professor of health research and policy at Stanford University, said the study was impressive and that its results had been eagerly awaited by the scientific community. “Sadly, the picture it paints - a 64% failure rate even among papers published in the best journals in the field - is not very nice about the current status of psychological science in general, and for fields like social psychology it is just devastating,” he said. http://www.theguardian.com/science/2015/aug/27/study-delivers-bleak-verdict-on-validity-of-psychology-experiment-results

  4. Indianapolis Bar Association President John Trimble and I are on the same page, but it is a very large page with plenty of room for others to join us. As my final Res Gestae article will express in more detail in a few days, the Great Recession hastened a fundamental and permanent sea change for the global legal service profession. Every state bar is facing the same existential questions that thrust the medical profession into national healthcare reform debates. The bench, bar, and law schools must comprehensively reconsider how we define the practice of law and what it means to access justice. If the three principals of the legal service profession do not recast the vision of their roles and responsibilities soon, the marketplace will dictate those roles and responsibilities without regard for the public interests that the legal profession professes to serve.

  5. I have met some highly placed bureaucrats who vehemently disagree, Mr. Smith. This is not your father's time in America. Some ideas are just too politically incorrect too allow spoken, says those who watch over us for the good of their concept of order.

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