Opinions

Opinions Oct. 14, 2011

October 14, 2011
Indiana Court of Appeals
Cedric Tharpe v. State of Indiana
49A04-1101-CR-24
Criminal. Affirms conviction of Class A felony attempted murder. Tharpe didn’t show the judge who presided over his case was biased or prejudiced, nor did he demonstrate his trial was unfair. The trial court didn’t abuse its discretion in denying his motion for continuance and there is sufficient evidence to support his conviction.
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Opinions Oct. 13, 2011

October 13, 2011
Indiana Court of Appeals
George Michael True v. State of Indiana
39A04-1102-CR-37
Criminal. Reverses conviction of Class A misdemeanor domestic battery. There was no serious evidentiary dispute about whether the battery was committed in the presence of the children. Instructing the jury that it could convict True of a Class A misdemeanor domestic battery instead of as a Class D felony improperly invited the jury to reach a “compromise” verdict. Remands for proceedings consistent with the opinion.
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Opinions Oct. 12, 2011

October 12, 2011
Indiana Court of Appeals
Julie Nunley, n/k/a Waldrath v. Jeremy A. Nunley
68A04-1105-DR-269
Domestic relation. Affirms that Jeremy Nunley is entitled to a reduction of his child support obligation due to the decrease in his income due to his incarceration for Class D felony nonsupport of a dependent. Declines to create an exception to the rules set forth in Clark and Lambert for individuals incarcerated for the crime of nonsupport of a dependent.
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Opinions Oct. 11, 2011

October 11, 2011
7th Circuit Court of Appeals
United States of America v. Roger Loughry, also known as Mayorroger
10-2967
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge William T. Lawrence
Criminal. Reverses District Court’s decision to allow admission as evidence “hard core” pornography without examining it or without explaining its reasoning under Rule 403. Holds that the material was highly inflammatory and held only minimal probative value, but created extreme prejudice against Loughry. Remands to the District Court for proceedings consistent with opinion.
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Opinions Oct. 10, 2011

October 10, 2011
The state and federal appellate courts are closed Monday in observance of Columbus Day.
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Opinions Oct. 7, 2011

October 7, 2011
Indiana Court of Appeals
James Fernbach v. State of Indiana
69A01-1103-CR-151
Criminal. Affirms 60-year sentence for two counts of Class A felony attempted murder, holding that the jury’s rejection of Fernbach’s insanity defense was not erroneous.
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Opinions Oct. 6, 2011

October 6, 2011
Indiana Supreme Court
Putnam County Sheriff v. Pamela Price
60S01-1012-CV-665
Civil. Reverses trial court’s denial of the Putnam County Sheriff’s motion to dismiss Price’s negligence action for failure to state a claim. A county sheriff’s department that neither owns, maintains or controls a county road does not owe a common law duty to warn the public of known hazardous conditions upon the roadway. Justices David and Dickson concur in result.
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Opinions Oct. 5, 2011

October 5, 2011
Indiana Court of Appeals
P.J. v. State of Indiana

49A05-1102-JV-121
Juvenile. Affirms restitution order following adjudication, after a guilty plea, as a delinquent child for committing what would be Class B felony burglary if committed by an adult. P.J. waived his right to have the juvenile court inquire into his ability to pay, as he has acknowledged such ability in his plea agreement.
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Opinions Oct. 4, 2011

October 4, 2011

Indiana Court of Appeals
Saba Tesfamariam v. Moghes Woldehaimanot
49A02-1009-DR-1050
Domestic relation. Affirms decree of dissolution of marriage, which awarded father Moghes Woldehaimanot full custody of the minor children. The trial court abused its discretion by failing to establish that mother Saba Tesfamariam’s interpreter was qualified and by failing to administer an oath to the interpreter to provide an accurate translation. The failure to establish the qualifications or to administer an oath is not a fundamental error, and the trial court’s errors in the instant case were not fundamental.

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Opinions Oct. 3, 2011

October 3, 2011
7th Circuit Court of Appeals
Kristine P. Purcell v. Bank of America
10-3975
U.S. District Court, Northern District of Indiana, Fort Wayne Division, Judge James T. Moody.
Civil. Reverses dismissal of Purcell’s common-law claims against the bank without prejudice to allow her to refile in state court. Remands with instructions to enter judgment for the bank on all of Purcell’s state and federal claims. Section 1681t(b)(1)(F) and Section 16811h(e)of 15 U.S.C. are compatible, and Section 1681(t)(b) would preempt Purcell’s state-law theories.
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Opinions Sept. 30, 2011

September 30, 2011
Indiana Supreme Court
Franklin Electric Company, Inc. v. Unemployment Insurance Appeals of the Indiana Dept. of Workforce Development
93S02-1102-EX-89
Agency appeal. Affirms determination of the liability administrative law judge that Franklin Electric Co. and its two newly created entities Franklin Electric Manufacturing and Franklin Electric Sales are a single employer. The manufacturing and sales entities did not acquire a distinct and segregable portion of Franklin Electric’s business, so they did not qualify as “employers” under the laws governing Indiana’s unemployment compensation arrangements.
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Opinions Sept. 29, 2011

September 29, 2011

7th Circuit Court of Appeals
Cedar Farm, Harrison County Inc. v. Louisville Gas and Electric Co.
10-2234
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge David F. Hamilton.
Civil. Affirms summary judgment for Louisville Gas and Electric on Cedar Farm’s attempt to eject Louisville Gas and Electric from its property and to terminate an oil and gas lease for violations of certain portions of the lease. The lease allows for a damages remedy and Cedar Farm hasn’t show that damages are inadequate to compensate for the harm to its property.

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Opinions Sept. 28, 2011

September 28, 2011
Indiana Supreme Court
Desmond Turner v. State of Indiana
49S00-0912-CR-565
Criminal. Affirms convictions of murder, criminal confinement, robbery and burglary, and the sentence of life in prison without parole for the murder convictions, plus a term of years for the other convictions. The trial court did not abuse its discretion in permitting firearms and tool mark examiner Michael Putzek’s testimony, and the admission of challenged testimony did not violate Indiana Evidence Rule 404(b). The trial court erred in admitting testimony on a statement made by Turner’s mother, but that does not require reversal.
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Opinions Sept. 27, 2011

September 27, 2011
Indiana Court of Appeals
Term. of Parent-Child Rel. of A.B.; E.B. v. IDCS (NFP)
79A05-1102-JT-102
Juvenile. Affirms termination of father’s parental rights.
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Opinions Sept. 26, 2011

September 26, 2011
Indiana Court of Appeals
Angela K. Farno v. Ansure Mortuaries of Indiana, LLC, et al.
41A05-1002-PL-104
Civil plenary. Affirms denial of Farno’s motion for class certification on superiority grounds regarding the alleged looting of cemetery trusts that had been funded from proceeds of purchases of pre-need burial services. The trial court did not err in finding the receiver’s action provided a superior method to recovery any of the missing trust funds.
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Opinions Sept. 23, 2011

September 23, 2011
Indiana Court of Appeals
Corrine R. Finnerty, as Successor Personal Representaive of the Estate of Dora Grace Lee, deceased v. Joseph A. Colussi and the Colussi Law Office
39A01-1011-ES-622
Estate, supervised. Reverses grant of summary judgment in favor of Joseph Colussi and Colussi Law Office on legal malpractice claim, holding that genuine issues of material fact exist and preclude such judgment. Remands for proceedings consistent with opinion. 
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Opinions Sept. 22, 2011

September 22, 2011
Indiana Court of Appeals
An-Hung Yao and Yu-Ting Lin v. State of Indiana
35A02-1006-CR-678
Criminal. Affirms order dismissing the Class D felony counterfeiting charges against Yao and Lin and reverses the denial of their motion to dismiss counts of Class D felony theft and Class C felony corrupt business influence. The trial court lacked territorial jurisdiction because there is no evidence any conduct that is an element of the alleged offenses occurred in Indiana. Remands for the trial court to dismiss the remaining charges.
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Opinions Sept. 21, 2011

September 21, 2011
Indiana Court of Appeals
George W. Giltner, Jr. v. Betty L. Ivers, Martin Zacharias, Jr., and Bradi L. Zacharias
10A05-1010-PL-662
Civil plenary. Affirms trial court’s confirmation of a report that partitioned 16.5 acres of a 100-acre parcel to Giltner, who owned an undivided 20 percent interest in the parcel. Giltner has not shown that he was prejudiced by the division outlined in the report.
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Opinions Sept. 20, 2011

September 20, 2011
Indiana Supreme Court
Rod L. Avery and Marshall K. Avery v. Trina R. Avery
49S05-1102-PL-76
Civil plenary. Affirms default judgment entered against Rod and Marshall Avery. The Indiana Trial Rules apply to will contest actions, and the failure to file an answer or responsive pleading in accordance with Trial Rule 7 may result in a default judgment.
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Opinions Sept. 19, 2011

September 19, 2011
Indiana Court of Appeals
John Haegert v. Margaret McMullan
82A04-1008-CT-470
Civil tort. Affirms summary judgment for Margaret McMullan in John Haegert’s action alleging defamation, tortious breach of his employment contract, and intentional infliction of emotional distress. Haegert failed to show how he was injured by the contents of McMullan’s file as his termination was based only upon an incident involving McMullan. There is not properly designated evidence in the record that McMullan intended to cause Haegert emotional distress.
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Opinions Sept. 16, 2011

September 16, 2011
Indiana Court of Appeals
Jon Paul Tongate v. State of Indian
a
29A02-1102-CR-223
Criminal. Affirms conviction of Class D felony receiving stolen property. The magistrate that presided over Tongate’s jury trial was not required to rule on the motion to correct error, and Tongate’s conviction is supported by sufficient evidence.
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Opinions Sept. 15, 2011

September 15, 2011
7th Circuit Court of Appeals
Cheryl A. Burns v. Orthoteck Inc. Employees’ Pension Plan and Trust, et al.
10-1521
U.S. District Court, Northern District of Indiana, South Bend Division, Chief Judge Philip P. Simon.
Civil. Affirms finding that Cheryl Burns’ consent to designate her husband’s three sons as beneficiaries was valid and affirms the denial of her claim for benefits. The unusual circumstances of the case lead to the conclusion that the pension plan was within its discretion to find that Dr. Burns, as plan representative, verified the authenticity of his wife’s signature on the written consent form and this satisfied 29 U.S.C. 1055’s witness requirement. The plan was also within its discretion to deny Burns’ claim for benefits.
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Opinions Sept. 14, 2011

September 14, 2011
Indiana Court of Appeals
Kenneth Dwayne Vaughn v. State of Indiana
45A05-1102-CR-57
Criminal. Reverses trial court’s denial of motion for mistrial, holding that restraining the defendant in the presence of the jury could have influenced the jury’s verdict.
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Opinions Sept. 13, 2011

September 13, 2011
Indiana Court of Appeals
Yasin Hory v. State of Indiana
01A04-1011-IF-717
Infraction. Affirms conviction of Class C infraction illegal parking, holding that Hory failed to establish an express or implied pre-emption of local traffic safety laws by federal motor safety regulations.
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Opinions Sept. 12, 2011

September 12, 2011
7th Circuit Court of Appeals
Kevin B. Arnett v. Thomas A. Webster, M.D., et al.
09-3280
U.S. District Court, Southern District of Indiana, Terre Haute Division, Judge William T. Lawrence.
Civil. Affirms dismissal of the non-medical defendants from Arnett’s Bivens action for cruel and unusual punishment while he was in prison. Finds Arnett properly stated a claim against the medical defendants Beighley, Dr. Wilson, and Paul-Blanc and reverses dismissal with regards to those three. Affirms summary judgment in favor of Dr. Webster because Arnett failed to meet his burden to submit evidence upon which a reasonable jury could find that the doctor acted with deliberate indifference. Remands for further proceedings.
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  1. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  3. 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)

  4. "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.

  5. 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.

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