Opinions March 16, 2012

March 16, 2012
7th Circuit Court of Appeals
Harry Foster III and Linda Foster v. State Farm Fire and Casualty Company
United States District Court, Northern District of Indiana, Fort Wayne Division, Judge Theresa L. Springman.
Civil. Affirms District Court’s grant of summary judgment in favor of State Farm Fire and Casualty Company, holding the Fosters’ failure to produce requested documents was a material breach of their insurance agreement.

Opinions March 15, 2012

March 15, 2012
Indiana Supreme Court
Charlie White, et. al. v. Indiana Democratic Party, through its Chairman , Daniel J. Parker
Miscellaneous. Reverses a decision by Marion Circuit Judge Lou Rosenberg, which found that Charlie White was not eligible to take office following the November 2010 election because he had improperly registered to vote at an address where he was not living. Justice Brent Dickson concurred in result, but wrote separately to say that he agreed with the election contest being dismissed because he sees the Legislature’s attempt to impose additional eligibility qualifications on candidates as unconstitutional and not a basis to contest someone’s eligibility for office.

Opinions March 14, 2012

March 14, 2012
Indiana Supreme Court
Phyllis Hardy, Alax Keith Furnish and Megan Jessica Furnish, by next friend Phyllis Hardy v. Mary Jo Hardy
Civil plenary. Holds that the Federal Employees’ Group Life Insurance Act does not preempt the equitable claims over the life insurance proceeds of Carlos Hardy and that the first wife and grandchildren are entitled to a constructive trust over at least a portion of the proceeds.


Opinions March 13, 2012

March 13, 2012
7th Circuit Court of Appeals
Shannon McComas v. Edward Brickley
United States District Court, Southern District of Indiana, Indianapolis Division, Judge Sarah Evans Barker.
Civil. Reverses District Court’s denial of Brickley’s motion for summary judgment. McComas filed suit against Brickley for false arrest after the charges against McComas were dropped.
But Brickley claimed that he had probable cause to arrest McComas and qualified immunity in his role as a police officer. The 7th Circuit agreed and held the District Court erred in its determination of qualified immunity. It remanded with instructions consistent with its opinion.

Opinions March 12, 2012

March 12, 2012
Indiana Court of Appeals
Wells Fargo Bank, N.A., successor in interest to The Money Store Investment Corp., f/d/b/a First Union Small Business Capital v. Neal A. Summers, et al. (NFP)
Civil plenary. Dismisses appeal, holding that Wells Fargo failed to timely file its notice of appeal.


Opinions March 9, 2012

March 9, 2012
7th Circuit Court of Appeals
United States of America v. Anthony Raupp
United States District Court, Southern District of Indiana, Indianapolis Division, Judge Tanya Walton Pratt.
Criminal. Affirms District Court’s determination that Raupp was a “career offender,” due to a previous crime of violence, and affirms 100-month sentence. Judge Diane Wood dissented, holding that the majority relied on a note in the U.S. Sentencing Guidelines that is for agency interpretation of its own rule.

Opinions March 8, 2012

March 8, 2012
7th Circuit Court of Appeals
U.S.A v. Marlon K. Spears
No. 10-3338
U.S. District Court, Northern District of Indiana, Hammond Division, Chief Judge Philip P. Simon.
Criminal. Affirms denial of motion to suppress evidence, finding that enough probable cause existed to justify a search warrant that led to a man’s convictions on drug charges.

Opinions March 7, 2012

March 7, 2012
Indiana Court of Appeals
Angela C. Garrett v. State of Indiana
Criminal. Reverses Class A felony conviction of dealing methamphetamine, finding that the trial court should have instructed the jury on a lesser-included offense of possession of methamphetamine. Remands for a new trial.

Opinions March 6, 2012

March 6, 2012
Indiana Supreme Court
Mark J. Thatcher v. City of Kokomo, et al.
Certified question. Indiana Code 36-8-4-7(a) applies to a member of the 1977 Fund who is receiving disability benefits and who has been determined to have been recovered pursuant to 35 Indiana Administrative Code 2-5-5(c). And the time period during which a person receives disability benefits under Indiana Code 36-8-8-12(e) does not count toward “years of service” as that term is used in Indiana Code 36-8-4-7(a).

Opinions March 5, 2012

March 5, 2012
Indiana Court of Appeals
Brandy L. Walczak v. Labor Works-Fort Wayne, LLC, d/b/a Labor Works
Civil plenary. Reverses summary judgment for Labor Works-Fort Wayne in Walczak’s suit for unpaid wages. Concludes that the matter must be first submitted to the Department of Labor for resolution, so the trial court lacked subject matter jurisdiction over the claims until the DOL had made a determination. Remands with instructions to dismiss the complaint.

Opinions March 2, 2012

March 2, 2012
Indiana Court of Appeals
Brian Scott Hartman v. State of Indiana
Criminal. Affirms the denial of Hartman’s motion to suppress a statement he made to the police regarding involvement in the death of his father. Hartman initiated further communication by asking whether the search warrant had been served and whether anything had been found, and then told the detective that he wanted to speak with him.

Opinions March 1, 2012

March 1, 2012
Indiana Court of Appeals
Jeremy K. Warriner v. DC Marshall Jeep a/k/a DC Marshall, Inc.
Civil tort.  Affirms summary judgment for the dealership in Warriner’s suit alleging the dealership is strictly liable for the injuries he sustained in a car accident under the Indiana Products Liability Act and liable for negligent marketing of an unsafe product. Holds a manufacturer’s discharge in bankruptcy does not prevent a trial court from holding jurisdiction over that manufacturer. Judge Bailey concurs in part and concurs in result in part.

Opinions Feb. 29, 2012

February 29, 2012
Indiana Court of Appeals
Joseph A. Davis v. Herbert Simon and Bui Simon
Civil tort. Reverses denial of Davis’ motion to dismiss for lack of personal jurisdiction a complaint filed by the Simons alleging defamation and false light publicity. Davis’ act of responding to the questions of a reporter who initiated the contact with Davis regarding a California lawsuit, in which he is serving as a plaintiff’s attorney, was not done with the purpose of expressly targeting a resident of the forum state. Judge Kirsch dissents.

Opinions Feb. 28, 2012

February 28, 2012
Indiana Court of Appeals
Jacob Key, Ted J. Brown and Sally A. Brown v. Dewayne Hamilton
Civil tort. Affirms trial court’s grant of summary judgment in favor of Hamilton, holding that Key – by waving into traffic a driver who caused a crash with Hamilton – assumed a duty of care to a third-party motorist because the signaled driver reasonably expected that traffic was clear.

Opinions Feb. 27, 2012

February 27, 2012
Indiana Court of Appeals
Arc Construction Management, LLC, and Alan Muncy v. John Zelenak and Cecilia Zelenak
Civil Tort. Affirms and remands case involving a home construction lawsuit, finding that trial court didn’t err in denying summary judgment on the former homeowners’ claim of breach of implied warranty of habitability.

Opinions Feb. 24, 2012

February 24, 2012
Indiana Court of Appeals
CFS, LLC and Charles Blackwelder v. Bank of America, Successor in Interest to LaSalle Bank Midwest National Association

Mortgage foreclosure.  Affirms trial court’s granting of summary judgment in favor of Bank of America, finding that the bank established no genuine issue of material fact existed about whether a successor bank surviving after a merger could enforce the note and mortgage of the predecessor.


Opinions Feb. 23, 2012

February 23, 2012
Indiana Court of Appeals
Eriberto Quiroz v. State of Indiana
Criminal. Reverses Quiroz’s conviction of Class C felony child molesting because that conviction along with a Class A felony child molesting conviction constitutes double jeopardy as the same evidence supports both convictions. Remands for the trial court to vacate the Class C felony conviction. The trial court did not commit fundamental error in including in the jury instructions a copy of the charging information that included the counts against Quiroz that had previously been dismissed.

Opinions Feb. 22, 2012

February 22, 2012
Indiana Supreme Court
Jerrme Cartwright v. State of Indiana
Criminal. Affirms convictions of attempted battery and unlawful possession of a firearm by a serious violent felon. Finds no evidence of pretext in the state’s strike of venireperson Bard, the only African-American.

Opinions Feb. 21, 2012

February 21, 2012
Indiana Court of Appeals
Herbert Yanez v. State of Indiana
Criminal. Reverses conviction of possession of marijuana as a Class A misdemeanor and remands for further proceedings. There was no evidence presented as to why Yanez was stopped and the evidence presented didn’t establish the reasonableness of the state’s actions. Judge Barnes concurs in result in a separate opinion.

Opinions Feb. 20, 2012

February 20, 2012
Indiana Court of Appeals
Curtis Cole v. Review Board of the Indiana Dept. of Workforce Development, and Owen County (NFP)
Agency appeal. Affirms denial of unemployment benefits.

Opinions Feb. 17, 2012

February 17, 2012
7th Circuit Court of Appeals
United States of America v. Samuel T. Henzel
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge Tanya Walton Pratt.
Criminal. Affirms 135-month sentence imposed following guilty plea to traveling across state lines with the intent to engage in illicit sexual conduct. The District Court miscalculated the imprisonment range favorably to Henzel, and the sentence imposed is actually within the correctly calculated range.

Opinions Feb. 16, 2012

February 16, 2012
Indiana Supreme Court
Richmond State Hospital and All Other Similarly Situated State Institutions and Agencies v. Paula Brattain, et al.
Civil. Holds that the back pay recovery of the non-merit employees of the state should be limited in the same manner as the Court of Appeals has set forth for that of merit employees of the state. Remands with instructions to recalculate the non-merit employees’ back pay judgment based upon the time period beginning either 10 days before the complaint or 10 days before the filing of their grievances until the day the state eliminated its split-pay system, and summarily affirms the COA in all other respects.

Opinions Feb. 15, 2012

February 15, 2012
Indiana Court of Appeals
Pierre Freeman v. State of Indiana (NFP)
Criminal. Affirms revocation of probation.

Opinions Feb. 14, 2012

February 14, 2012
Indiana Court of Appeals
In Re: The Marriage of K.Z. and M.H.
Domestic relation. Affirms trial court’s order modifying dissolution decree to reflect that a child of the marriage between K.Z. and M.H. had been born after their divorce. Citing mother’s statement in the original dissolution decree, holds that no question of paternity exists, and therefore, the court did not abuse its discretion in modifying the dissolution decree at the father’s request.

Opinions Feb. 13, 2012

February 13, 2012
Indiana Court of Appeals
Bloomington Magazine, Inc. v. Mark Kiang d/b/a Mikado Restaurant, Sunbeam Corp., and Truffles 56 Degrees Incorporated
Civil. Reverses trial court’s order denying a motion to set aside judgment in favor of Mikado Restaurant Sunbeam Corp. and Truffles 56 Degrees. Finds that the trial court abused its discretion in denying a motion for the judge’s recusal and request for a special judge in light of one of the attorney’s past involvement as the judge’s 2008 election campaign chair. Remands the case for proceedings consistent with this appellate decision.
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  1. Joe, you might want to do some reading on the fate of Hoosier whistleblowers before you get your expectations raised up.

  2. I had a hospital and dcs caseworker falsify reports that my child was born with drugs in her system. I filed a complaint with the Indiana department of health....and they found that the hospital falsified drug screens in their investigation. Then I filed a complaint with human health services in Washington DC...dcs drug Testing is unregulated and is indicating false positives...they are currently being investigated by human health services. Then I located an attorney and signed contracts one month ago to sue dcs and Anderson community hospital. Once the suit is filed I am taking out a loan against the suit and paying a law firm to file a writ of mandamus challenging the courts jurisdiction to invoke chins case against me. I also forwarded evidence to a u.s. senator who contacted hhs to push an investigation faster. Once the lawsuit is filed local news stations will be running coverage on the situation. Easy day....people will be losing their jobs soon...and judge pancol...who has attempted to cover up what has happened will also be in trouble. The drug testing is a kids for cash and federal funding situation.

  3. (A)ll (C)riminals (L)ove (U)s is up to their old, "If it's honorable and pro-American, we're against it," nonsense. I'm not a big Pence fan but at least he's showing his patriotism which is something the left won't do.

  4. While if true this auto dealer should be held liable, where was the BMV in all of this? How is it that the dealer was able to get "clean" titles to these vehicles in order to sell them to unsuspecting consumers?

  5. He has refused his Assent to Laws, the most wholesome and necessary for the public good. He has forbidden his Governors to pass Laws of immediate and pressing importance, He has erected a multitude of New Offices, and sent hither swarms of Officers to harrass our people, and eat out their substance. He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation: For imposing Taxes on us without our Consent: He is at this time transporting large Armies of foreign Mercenaries to compleat the works of death, desolation and tyranny, already begun with circumstances of Cruelty & perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation.. He has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless [ ] Savages, whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions. GOD BLESS THE GOVERNORS RESISTING! Count on the gutless judiciary to tie our children down and facilitate the swords being drawn across their throats. Wake Up America ...