Opinions

Opinions Jan. 3, 2011

January 3, 2011
Indiana Court of Appeals
Kyle Beals v. State of Indiana (NFP)
49A02-1004-CR-461
Criminal. Reverses convictions of four counts of Class B felony criminal confinement and orders they be vacated. Affirms convictions of two counts of Class B felony robbery and one count of resisting law enforcement as a Class D felony.
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Opinions Dec. 30, 2010

December 30, 2010

Indiana Court of Appeals
Richmond State Hospital, et al. v. Paula Brattain, Francis Ernst, et al.
49A02-0908-CV-718
Civil. Denies the state’s petition and grants the employees’ petition to clarify the Court of Appeals’ instructions on remand for determining the merit employees’ damages. Concludes merit employees are entitled to back pay for the period beginning either 10 days before the filing of the July 29, 1993, complaint, or 10 days before the filing of their individual administrative grievances, whichever comes first, until the date that the state abolished the split class system. The trial court must determine whether the state terminated the split class system on Sept. 12 or Sept. 19, 1993.
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Opinions Dec. 29, 2010

December 29, 2010

7th Circuit Court of Appeals
USA v. James K. Taylor
U.S. District Court for the Northern District of Indiana, South Bend Division, Judge Robert L. Miller Jr.
10-2947
Criminal. Affirms sentenced for 64 months’ imprisonment following a guilty plea to possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The sentence was based in part on the District Court’s conclusion that his prior Indiana conviction for Class C felony battery qualified as a “crime of violence” under § 4B1.2(a) of the federal sentencing guidelines, enhancing his recommended base offense level. Taylor argued his battery conviction was not a crime of violence for the purposes of the federal sentencing guidelines.

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Opinions Dec. 28, 2010

December 28, 2010

Indiana Court of Appeals
Richard Childress Jr. v. State of Indiana
45A03-0911-CR-520
Criminal. Affirms convictions of robbery and criminal confinement, both Class B felonies. On appeal, appellant-defendant raised the sole issue of whether the trial court erred in admitting evidence the state did not disclose until the second day of trial. Court of Appeals concluded the state’s late disclosure did not impair his right to a fair trial.

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Opinions Dec. 27, 2010

December 27, 2010

Indiana Court of Appeals
Paternity of M.F., et al.; J.F. v. W.M.
21A04-1002-JP-84
Juvenile. Affirms denial of mother’s petition to establish paternity with respect to M.F. Mother failed to prove that insemination incurred in such a way as to render the donor agreement unenforceable and void as against public policy. Reverses finding that a valid, enforceable contract existed that would prohibit an action to establish paternity of C.F., the second child born. Remands to grant mother’s petition to establish paternity with respect to C.F. Judge Crone dissents in part.
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Opinions Dec. 23, 2010

December 23, 2010

7th Circuit Court of Appeals
USA v. Kevin Dortch
09-3260
U.S. District Court for the Northern District of Indiana, Hammond Division, Judge Rudy Lozano
Criminal. Affirms statutory maximum of 240 months imprisonment for Dortch, who pled guilty and only appealed his sentence. After robbing a bank that was located inside a drugstore in Munster, he led police on two high-speed chases through the nearby residential neighborhoods. At issue was whether enough evidence was presented regarding an officer’s hospital visit following the car chase to show “serious bodily injury.”

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Opinions Dec. 22, 2010

December 22, 2010

7th Circuit Court of Appeals
Trinity Homes LLC and Beazer Homes Investments LLC v. Ohio Casualty Insurance Company and Cincinnati Insurance Company
09-3613
U.S. District Court for the Southern District of Indiana, Indianapolis Division, Judge Sarah Evans Barker
Civil. Reverses District Court’s grant of summary judgment in favor of the insurers on the homebuilders’ suit alleging breach of contract and seeking a declaration that all of the insurers had a duty to provide coverage. The precedential landscape has changed regarding the claim against Ohio Casualty. Remands for reconsideration in light of Sheehan.

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Opinions Dec. 21, 2010

December 21, 2010

7th Circuit Court of Appeals
United States of America v. Lawrence Taylor

10-1304
U.S. District Court, Northern District of Indiana, South Bend Division, Judge Robert L. Miller Jr.
Criminal. Affirms Taylor’s sentences for bank robbery and for violating terms of his supervised release relating to an earlier bank robbery conviction, but orders a limited remand. The District Court erred by treating the policy statement recommendation in U.S.S.G. Section 7B1.3(f) as mandating consecutive sentencing for Taylor’s 2008 bank robbery case and his supervised release case.

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Opinions Dec. 20, 2010

December 20, 2010
Indiana Court of Appeals
Bruce R. Smith v. Morgan L. Smith
02A03-1005-DR-276
Domestic relation. Reverses division of marital property. The trial court abused its discretion by awarding Morgan more than 100 percent of the marital estate. Remands for a just and reasonable division of the marital estate not exceeding the net value of the estate.
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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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