Opinions

Opinions Dec. 17, 2010

December 17, 2010
7th Circuit Court of Appeals
Karl Schmidt Unisia Inc. v. International Union, United Automobile, et al.
09-4001
U.S. District Court, Northern District of Indiana, Fort Wayne Division, Judge Joseph S. Van Bokkelen.
Civil. Affirms summary judgment in favor of International Union, et al., on their counterclaim to compel arbitration. The collective bargaining agreement’s arbitration clause creates a presumption that the union’s grievance is arbitrable.
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Opinions Dec. 16, 2010

December 16, 2010
Indiana Court of Appeals
William Hurst v. State of Indiana
49A02-1004-CR-378
Criminal. Affirms denial of motion to suppress evidence obtained upon the execution of a search warrant. To the extent the trial court concluded that Eric Thomas was inherently credible simply because he was a cooperating citizen informant, the trial court erred. A texted photo to Thomas corroborated the hearsay and there was sufficient evidence to support a finding of probable cause.
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Opinions Dec. 15, 2010

December 15, 2010
Indiana Supreme Court
Joshua G. Nicoson v. State of Indiana
32S04-1003-CR-150
Criminal. Affirms five-year sentence enhancement for the use of a firearm following Nicoson's convictions of criminal confinement with a deadly weapon as a Class B felony. Holds that adding these years is consistent both with the statutes in question and with the prohibition against double jeopardy.
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Opinions Dec. 14, 2010

December 14, 2010

Indiana Court of Appeals
Presbytery of Ohio Valley, Inc., et al. v. OPC, Inc., et al.
82A02-1003-MF-339
Mortgage foreclosure. Reverses summary judgment in favor of appellees-defendants OPC Inc. and others in a property dispute between a local congregation and the national church. When the neutral principles of law approach is applied correctly, the appellants prevail. Remands with instructions.

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Opinions Dec. 13, 2010

December 13, 2010
Indiana Court of Appeals
Involuntary Commitment of G.M.
33A01-1006-MH-325
Mental health. Holds that the committing court’s conclusion for the basis of its order to commit G.M.  – that he was incapable of providing himself food, clothing, shelter, or other essential human needs - wasn’t supported by the evidence. G.M. may be determined to be gravely disabled under another definition set forth in statute. Remands for a review of G.M.’s care and treatment.
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Opinions Dec. 10, 2010

December 10, 2010
Indiana Court of Appeals
David Snowberger v. State of Indiana
09A02-1005-CR-570
Criminal. Reverses revocation of probation. Snowberger’s plea agreement to nonsupport of a dependent child required the state to show his failure to pay child support to be willful and he has the ability to make payments before his probation could be revoked. The evidence was insufficient to support the revocation.
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Opinions Dec. 9, 2010

December 9, 2010
7th Circuit Court of Appeals
American Bank v. City of Menasha, et al.
10-1963
U.S. District Court, Northern District of Indiana, Hammond Division, Judge Theresa L. Springmann.
Civil. Order corrects sentence in original opinion from Nov. 29, 2010.
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Opinions, Dec. 8, 2010

December 8, 2010
Indiana Court of Appeals
Phillip Forman v. Wayne Penn, et al.
33A01-1007-CT-343
Civil tort. Dismisses appeal because it isn’t certified for interlocutory appeal or authorized as an appeal from a final judgment pursuant to Ind. Trial Rule 54(B).
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Opinions Dec. 7, 2010

December 7, 2010
Indiana Court of Appeals
M.S. v. C.S.
03A01-1003-DR-140
Domestic relation. Affirms trial court’s order to vacate a previous order granting M.S. joint legal custody of and parenting time with S.S., a child born to C.S., M.S.’s former domestic partner of more than 10 years. M.S. appealed and raised three issues: whether the trial court erred in vacating its prior custody and visitation order; whether the trial court abused its discretion by modifying custody of S.S. without a petition to modify or a showing of a substantial change in circumstances; and whether the trial court abused its discretion in denying M.S. parenting time.
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Opinions Dec. 6, 2010

December 6, 2010

7th Circuit Court of Appeals
Brian D. Grigsby v. Ray LaHood, Secretary of the U.S. Department of Transportation
U.S. District Court, Southern District of Indiana, Indianapolis Division, Chief Judge Richard L. Young.
Civil. Affirms summary judgment for the Department of Transportation in his suit claiming he wasn’t hired because of his Native American heritage. Grigsby was not qualified for any of the positions he applied for.
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Opinions Dec. 3, 2010

December 3, 2010
Indiana Court of Appeals
Marion County Auditor & McCord Investments v. Sawmill Creek
49A02-0912-CV-1192
Civil. Affirms order granting motion filed by Sawmill Creek to set aside a tax deed the auditor issued to McCord Investments. Follows the holding of the U.S. Supreme Court in Jones to agree with the trial court that the owner of the lot, Sawmill Creek, wasn’t provided constitutionally adequate notice of the tax sale.
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Opinions Dec. 2, 2010

December 2, 2010
7th Circuit Court of Appeals
United States of America v. Juan A. Corona-Gonzalez a/k/a Juan R. Ramirez
09-3993
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge David F. Hamilton.
Criminal. Reverses sentence for drug convictions and possession of a firearm in furtherance of a drug trafficking crime. There is a substantial chance that the District Court’s misapprehension of whether Corona-Gonzalez was deported and returned to the country illegally played a significant role in the adjudication of his sentence. Remands to allow the District Court to reassess the sentence free of the factual misapprehension.
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Opinions Dec. 1, 2010

December 1, 2010
Indiana Court of Appeals
William R.D. Britt v. State of Indiana
02A03-1004-CR-253
Criminal. Affirms convictions of Class B felony robbery, Class D felony criminal recklessness, and Class A misdemeanor carrying a handgun without a license. The trial court didn’t abuse its discretion in refusing to allow Britt’s counsel to introduce evidence of his brother Brandon’s prior robbery conviction.
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Opinions Nov. 30, 2010

November 30, 2010
Indiana Court of Appeals
Albert J. Hall v. State of Indiana
06A05-1003-CR-187
Criminal. Reverses conviction of operating a motor vehicle as a habitual traffic offender as a Class D felony. The trial court committed fundamental error in its instruction on the mens rea element of the Habitual Traffic Violator Statute. Remands for a new trial.
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Opinions Nov. 29, 2010

November 29, 2010
7th Circuit Court of Appeals
American Bank v. City of Menasha, et al.
10-1963
U.S. District Court, Northern District of Indiana, Hammond Division, Judge Theresa L. Springmann.
Civil. Reverses judgment granting a stay requested by Menasha to give American Bank certain records available pursuant to Wisconsin’s Public Records Law. The bank, a plaintiff in a class-action suit charging the city violated federal securities law, requested the documents after the suit was filed. The stay is not a stay of a discovery order and can only be an injunction; only a stay of discovery is authorized by the Securities Litigation Uniform Standards Act of 1998.
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Opinions Nov. 24, 2010

November 24, 2010
Indiana Court of Appeals
Samuel Neal, Delores Neal and Hometown Transmissions, Inc. v. William J. Cure, et al.
49A04-0908-CV-468
Civil. Affirms summary judgment for the Cures on the Neals’ claims of environmental contamination under the Environmental Legal Act, nuisance, trespass, and negligence. The designated evidence does not, in light of the Cures' lack of involvement in or knowledge of Masterwear’s actions, give rise to a genuine issue of material fact regarding the Cures' liability for nuisance, trespass, negligence, or an ELA violation.
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Opinions Nov. 23, 2010

November 23, 2010
7th Circuit Court of Appeals
Nightingale Home Healthcare, Inc. v. Anodyne Therapy, LLC
10-2327
U.S. District Court for the Southern District of Indiana, Indianapolis Division, Judge Sarah Evans Barker
Civil. Affirms the judgment of the District Court that granted Anodyne’s request for an award of attorneys’ fees in the amount of $72,747. The award was based on 15 U.S.C. § 1117(a), which allows attorneys’ fees to be awarded to prevailing parties in Lanham Act suits, but only in “exceptional cases.” Nightingale contended no award of attorneys’ fees was justified because the case was not “exceptional.” Also grants Anodyne’s motion for fees and costs pursuant to Rule 38 of the appellate rules. Dismisses as moot Anodyne’s motion to strike Nightingale’s brief and appendix.
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Opinions Nov. 22, 2010

November 22, 2010
Indiana Court of Appeals
Levie S. Jackson v. State of Indiana
79A02-0912-CR-1230
Criminal. Affirms convictions of seven counts of Class C felony forgery, six counts of Class D felony theft, and finding Jackson is a habitual offender The trial court did not err in denying Jackson’s motion to sever. Because he did not present any explanation of how he was prejudiced by the timing of the additional charge, the trial court declined to reverse the habitual offender enhancement.
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Opinions Nov. 19, 2010

November 19, 2010
Indiana Court of Appeals
Florence R. Lacy-McKinney v. Taylor Bean and Whitaker Mortgage Corp.
71A03-0912-CV-587
Civil. Reverses summary judgment in favor of Taylor Bean & Whitaker Mortgage Corp. on its action to foreclose on Lacy-McKinney’s mortgage that was insured by the Federal Housing Administration. Views the affirmative defense of noncompliance with HUD regulations as the failure of the mortgagee to satisfy a HUD-imposed condition precedent to foreclosure. To hold otherwise would circumvent the public policy of HUD. Remands for further proceedings.
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Opinions Nov. 18, 2010

November 18, 2010
7th Circuit Court of Appeals
David N. Rain and Paramount International Inc. v. Rolls-Royce Corp.
10-1290
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge William T. Lawrence.
Civil. Affirms partial summary judgment in favor of Rolls-Royce on Rain’s claim for breach of contract by breaching a non-disparagement provision in a settlement agreement after Rolls-Royce filed a Texas lawsuit involving Rain and Paramount. Affirms the judgment following a bench trial on breach of contract in favor of Rolls-Royce after Rolls-Royce asked Rain to leave an event.
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Opinions Nov. 17, 2010

November 17, 2010

7th Circuit Court of Appeals
United States of America v. Rosalio Cruz-Rea and Zoyla Garcia-Rea
09-3591, 10-1355
U.S. District Court, Southern District of Indiana, Evansville Division, Chief Judge Richard L. Young.
Criminal. Affirms convictions of and sentences of Cruz-Rea for conspiracy to possess with intent to distribute more than five kilograms of cocaine and possession with intent to distribute 500 grams or more of cocaine, and convictions of and sentences for Garcia-Rea for conspiracy to possess with intent to distribute more than five kilograms of cocaine. The government didn’t abuse its discretion in determining that the government laid sufficient foundation for an officer’s voice identification testimony under Fed. Evid. Rule 901(b)(5). Affirms in all other respects.

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Opinions Nov. 16, 2010

November 16, 2010
Indiana Court of Appeals
Kevin L. Hampton v. State of Indiana
84A04-1002-PC-122
Post conviction. Affirms denial of petition for post-conviction relief. There was no error in omitting the requested sentence and appellate counsel did not fail to provide effective assistance.
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Opinions Nov. 15, 2010

November 15, 2010
7th Circuit Court of Appeals
United States of America v. Lorenzo Tavarez
09-3879
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge William T. Lawrence.
Criminal. Affirms convictions of two counts of distributing 50 grams or more methamphetamine. Tavarez failed to show that the confidential informant was available only to the government. The District Court therefore did not err by refusing the missing witness instruction. Concludes that the jury could reasonably reach its guilty verdict on the circumstantial evidence presented here.
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Opinions Nov. 12, 2010

November 12, 2010
Indiana Supreme Court
In the Matter of William J. Rawls
49S00-0908-DI-355
Discipline. Disbars Rawls for violating Indiana Professional Conduct Rules 1.2(a), 1.3, 1.4(a), 1.16(d), 8.1(a), 8.1(b), 8.4(b), and 8.4(c). Rawls has demonstrated a pattern of neglect of his clients' cases, resulting in adverse dispositions, suspension of one client's driver's license, a missed opportunity to settle, and undue delay.
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Opinions Nov. 11, 2010

November 11, 2010
The courts are closed today in observance of Veterans Day. 
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  1. The fee increase would be livable except for the 11% increase in spending at the Disciplinary Commission. The Commission should be focused on true public harm rather than going on witch hunts against lawyers who dare to criticize judges.

  2. Marijuana is safer than alcohol. AT the time the 1937 Marijuana Tax Act was enacted all major pharmaceutical companies in the US sold marijuana products. 11 Presidents of the US have smoked marijuana. Smoking it does not increase the likelihood that you will get lung cancer. There are numerous reports of canabis oil killing many kinds of incurable cancer. (See Rick Simpson's Oil on the internet or facebook).

  3. The US has 5% of the world's population and 25% of the world's prisoners. Far too many people are sentenced for far too many years in prison. Many of the federal prisoners are sentenced for marijuana violations. Marijuana is safer than alcohol.

  4. My daughter was married less than a week and her new hubbys picture was on tv for drugs and now I havent't seen my granddaughters since st patricks day. when my daughter left her marriage from her childrens Father she lived with me with my grand daughters and that was ok but I called her on the new hubby who is in jail and said didn't want this around my grandkids not unreasonable request and I get shut out for her mistake

  5. From the perspective of a practicing attorney, it sounds like this masters degree in law for non-attorneys will be useless to anyone who gets it. "However, Ted Waggoner, chair of the ISBA’s Legal Education Conclave, sees the potential for the degree program to actually help attorneys do their jobs better. He pointed to his practice at Peterson Waggoner & Perkins LLP in Rochester and how some clients ask their attorneys to do work, such as filling out insurance forms, that they could do themselves. Waggoner believes the individuals with the legal master’s degrees could do the routine, mundane business thus freeing the lawyers to do the substantive legal work." That is simply insulting to suggest that someone with a masters degree would work in a role that is subpar to even an administrative assistant. Even someone with just a certificate or associate's degree in paralegal studies would be overqualified to sit around helping clients fill out forms. Anyone who has a business background that they think would be enhanced by having a legal background will just go to law school, or get an MBA (which typically includes a business law class that gives a generic, broad overview of legal concepts). No business-savvy person would ever seriously consider this ridiculous master of law for non-lawyers degree. It reeks of desperation. The only people I see getting it are the ones who did not get into law school, who see the degree as something to add to their transcript in hopes of getting into a JD program down the road.

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