Opinions

Opinions, May 11, 2011

May 11, 2011
7th Circuit Court of Appeals
Bloomfield State Bank v. United States of America
10-3939
U.S. District Court, Southern District of Indiana, Terre Haute Division, Judge Larry J. McKinney.
Civil. Reverses summary judgment for the government in the bank’s suit that rent collected on a property in which the bank provided the mortgage should to the bank, not to the IRS to go toward a tax lien. The real estate that generated the rental income at issue in this case existed when the mortgage was issued and thus before the tax lien attached; the rental income was proceeds of that property, which preexisted the tax lien. Remands with directions to enter judgment for the bank.
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Opinions May 10, 2011

May 10, 2011
Cornelius T. Lacey, Sr. v. State of Indiana
02S05-1010-CR-601
Criminal. Affirms denial of Lacey’s motion to suppress. The police did not have to present known supporting facts and obtain an advance judicial authorization for the no-knock entry. Summarily affirms the Indiana Court of Appeals as to all other issues.
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Opinions May 9, 2011

May 9, 2011
Indiana Court of Appeals
Johnnie Stokes v. State of Indiana
49A04-1009-CR-578
Criminal. Affirms 44-year aggregate sentence for Class B felonies robbery, attempted robbery, and unlawful possession of a firearm, and Class C felony criminal recklessness. The trial court did not abuse its discretion in considering Stokes’ 2001 dealing in cocaine conviction and evidence of his extensive criminal record to enhance his sentences for his other present offenses. His sentences also do not violate the double jeopardy clause of the Indiana Constitution.
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Opinions May 6, 2011

May 6, 2011
7th Circuit Court of Appeals
United States of America v. Jermel C. Thomas
10-3566
U.S. District Court, Northern District of Indiana, South Bend Division,
Judge Robert L. Miller, Jr.
Criminal. Dismisses appeal, stating the District Court did not err in enforcing a plea agreement wherein Jermel Thomas had waived his right to appeal his sentence and conviction.
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Opinions May 5, 2011

May 5, 2011
7th Circuit Court of Appeals
United States of America v. John L. Norris
10-1612
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge Sarah Evans Barker.
Criminal. Affirms denial of motion to suppress evidence. The police officers were acting pursuant to a valid warrant and in a reasonable manner.
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Opinions May 4, 2011

May 4, 2011
Indiana Court of Appeals
Robert Eppl v. Christine DiGiacomo
45A03-1007-SC-402
Small claim. Reverses summary judgment for DiGiacomo and order that Eppl return DiGiacomo’s security deposit and pay her attorney fees. DiGiacomo’s mere delivery of the keys is not sufficient to demonstrate that Eppl actually accepted surrender of the premises and thereby released her from liability as of that date. Eppl’s itemization of damages letter was timely.
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Opinions May 3, 2011

May 3, 2011
7th Circuit Court of Appeals
United States of America v. Donald Leach
10-1786
U.S. District Court, Northern District of Indiana, South Bend Division, Judge Robert L. Miller Jr.
Criminal. Affirms denial of Leach’s motion to dismiss his indictment for knowingly failing to register as a sex offender after traveling in interstate commerce in violation of the Sex Offender Registration and Notification Act. There is no ex post facto violation of the United States Constitution.
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Opinions May 2, 2011

May 2, 2011
7th Circuit Court of Appeals
United States of America v. David Lee Runyan
10-3400
U.S. District Court, Northern District of Indiana, Hammond Division, Judge James T. Moody.
Criminal. Affirms 63-year sentence for being a felon in possession of a firearm. Runyan argued the District Court sentenced him without considering the care he gave his then-terminally ill father, but his argument rested on past caregiving rather than present caregiving and the District Court didn’t need to address it. Also finds the District Court’s commentary at sentencing to not be impermissibly one-sided.
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Opinions April 29, 2011

April 29, 2011
Indiana Court of Appeals
Steven A. Coppolillo v. Anthony Cort
45A05-1007-PL-433
Civil plenary. Reverses summary judgment in favor of Cort on Coppolillo’s suit for unjust enrichment.  The parties’ contract does not preclude Coppolillo’s claim in equity against Cort. There is a material dispute of fact as to whether Cort was unjustly enriched. Remands for further proceedings.
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Opinions April 28, 2011

April 28, 2011
7th Circuit Court of Appeals
Andrew C. Koons v. United States of America
09-3025
U.S. District Court, Southern District of Indiana, Evansville Division, Chief Judge Richard L. Young.
Civil. Affirms denial of Koons’ motion to vacate his guilty plea to being a felon in possession of a firearm. Koons failed to establish that his trial counsel’s performance was constitutionally deficient.
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Opinions April 27, 2011

April 27, 2011
Indiana Supreme Court
Martin Serrano v. State of Indiana and the City of Fort Wayne
02S03-1104-CV-241
Civil. Reverses trial court judgment in favor of the state allowing for the forfeiture of Serrano’s truck. The state concluded he used the truck to transport or facilitate the transportation of a controlled substance for purposes of committing a drug-related offense. There was insufficient evidence to establish by a preponderance that Serrano’s drug possession at the time he was arrested was furthered by the use of his truck or that his truck was used for the purpose of possessing cocaine.
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Opinions April 26, 2011

April 26, 2011

Indiana Court of Appeals
Wachovia Financial Services, Inc. v. Dune Harbor, LLC, et al.
64A03-1008-MF-415
Mortgage foreclosure. Reverses summary judgment order that a vendor lien was created in favor of and in force for Lefty’s Co-Ho Landing when Wachovia recorded its mortgages, stating that a genuine issue of material fact remains as to whether the lien, if created, was in force. Remands for further proceedings.

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Opinions April 25, 2011

April 25, 2011
7th Circuit Court of Appeals
United States of America v. Marcus Curlin
10-3033
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge Sarah Evans Barker.
Criminal. Affirms District Court’s decision to deny motion to suppress, without an evidentiary hearing, stating Marcus Curlin failed to identify any disputed issues of fact that affect the outcome of the motion.
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Opinions April 22, 2011

April 22, 2011
7th Circuit Court of Appeals
United States of America v. Garjon Collins
10-2576
U.S. District Court, Northern District of Indiana, Hammond Division, Judge Joseph S. Van Bokkelen.
Criminal. Affirms 108-month sentence following guilty plea to 11 counts of misusing a Social Security number and 11 counts of aggravated identity theft. The District Court properly considered the Section 3553(a) sentencing factors and imposed an appropriate, reasonable sentence in this case.
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Opinions April 21, 2011

April 21, 2011
Indiana Supreme Court
Tom George, et al. v. National Collegiate Athletic Association
94S00-1010-CQ-544
Certified question. The NCAA’s ticket-allocation process for championship sporting events – only refunding the face value and not a handling fee to unsuccessful applicants – is not an illegal lottery under Indiana law because no prize was awarded to those applicants who received the opportunity to purchase tickets. Where an event coordinator creates the primary market for event tickets, the fair-market value of the tickets is equal to their face value and there is no “prize.” 
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Opinions April 20, 2011

April 20, 2011
Indiana Court of Appeals
Ricky E. Graham v. State of Indiana
22A01-1008-PC-392
Post conviction. Grants rehearing to clarify comments made regarding the creation and preservation of evidentiary records in post-conviction relief proceedings and affirms original opinion in all respects.
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Opinions April 19, 2011

April 19, 2011
Indiana Court of Appeals
Michael K. Wethington v. State of Indiana (NFP)
32A01-1009-CR-481
Criminal. Affirms conviction of operating a motor vehicle while an habitual traffic violator.
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Opinions April 18, 2011

April 18, 2011
Indiana Court of Appeals
James Stewart v. State of Indiana
49A04-1001-CR-48
Criminal. Vacates Class C felony robbery conviction and corresponding four-year sentence because Stewart’s convictions for both felony murder and the underlying felony of robbery violate the prohibitions of double jeopardy. Finds there was sufficient evidence to support Stewart’s convictions of seven counts of felony murder, six counts of criminal confinement as Class B felonies, Class B felony burglary, Class A misdemeanor carrying a handgun without a license, and adjudication as a habitual offender. The trial court did not abuse its discretion in excluding certain hearsay statements or by admitting certain photographs, and Stewart isn’t entitled to the procedural protections of the Life Without Parole Statute. Judge Bradford concurs in part and concurs in result in part.
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Opinions April 15, 2011

April 15, 2011
Heather Schrock v. Marion Schrock
20A03-1009-DR-484
Domestic relation. Vacates trial court’s belated order because it was made void by the instant appeal. Marion is able to proceed by cross-appeal to obtain appellate review of the issues raised in his motion to correct error as set forth in a footnote in Cavinder Elevators and in HomeEq. Reverses in part the dissolution order.
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Opinions April 14, 2011

April 14, 2011
Indiana Court of Appeals
Diane Werner v. Gregory Werner

46A03-1008-DR-447
Domestic relation. Affirms order finding it would be in the children’s best interest for their father to be their primary physical custodian and awarding mother parenting time. Diane Werner waived her argument that the court used the wrong standard in determining whether to modify custody because she didn’t object at the custody hearing. The trial court’s findings are sufficient to support its judgment under the “best interests” standard. Judge Kirsch dissents.
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Opinions April 13, 2011

April 13, 2011
Indiana Court of Appeals
Douglas M. Grimes v. Victoria Crockrom, et al.
45A03-1008-CT-491
Civil tort. Affirms order that Grimes, Crockrom’s former attorney, produce Crockrom’s medical records he obtained while he was representing her. The trial court erred when it did so without first providing for the security of the attorney fees owed. Grimes has a valid retaining lien over Crockrom’s medical records. Remands with instructions that the court determine how much in attorney fees Grimes is owed and then order Crockrom to provide security for the payment of those fees.
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Opinions April 12, 2011

April 12, 2011
Indiana Court of Appeals
Cassandra Johnson and Jarrett Buse v. Anya E. Wait, et al.
82A01-0910-CV-498
Civil. Affirms the jury instruction on contributory negligence, finding sufficient evidence to support giving it. The trial court didn’t err by refusing to give the tendered instruction on the doctrine of res ipsa loquitur offered by Johnson and Buse because there is a dearth of evidence as to exactly how and when Johnson’s shoulder injuries occurred. Affirms trial court allowance of a defense orthopedic expert witness to testify as to his opinions on causation.
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Opinions April 11, 2011

April 11, 2011
Indiana Court of Appeals
Randall Woodruff, trustee, U.S. Bankruptcy Court, on behalf of Legacy Healthcare Inc. v. Indiana Family & Social Services Administration, Office of Medicaid Policy and Planning
29A02-1002-PL-220
Civil plenary. Reverses summary judgment in favor of the Family and Social Services Administration on New Horizon Development Center’s $4 million quantum meruit claim. Once a provider with a long-term care facility has been voluntarily or involuntarily terminated, FSSA, as the state Medicaid agency, has the primary responsibility for relocating the Medicaid patients and for ensuring their safe and orderly transfer from the old facility.
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Opinions April 8, 2011

April 8, 2011
Indiana Court of Appeals
Samuel D. Raisor, et al. v. Edward O. Carter, et al.
49A05-1010-CT-629
Civil tort. Reverses summary judgment for Jimmie’s Raceway Pub, in which the trial court  found the Raisors’ action was barred by the two-year statute of limitations for personal injury actions and the amended complaint couldn’t relate back to the original filing date because Jimmie’s received notice of the action after the expiration of the 120-day period allowed under Ind. Trial Rule 15(C).
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Opinions April 7, 2011

April 7, 2011
7th Circuit Court of Appeals
United States of America v. Jeffrey P. Taylor
10-2715
U.S. District Court, Northern District of Indiana, Hammond Division, Judge James T. Moody.
Criminal. Reverses conviction of and 10-year sentence for violating 18 U.S.C. Section 2422(b), which deals with knowingly persuading or enticing someone under 18 to engage in prostitution or any sexual activity for which any person can be charged with a criminal offense, or attempts to do so. The section is ambiguous and sexual activity and sexual act could be synonyms and therefore require contact between the perpetrator and victim for a conviction. Remands with instructions to acquit Taylor. Judge Manion concurs in a separate opinion.
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  1. wow is this a bunch of bs! i know the facts!

  2. MCBA .... time for a new release about your entire membership (or is it just the alter ego) being "saddened and disappointed" in the failure to lynch a police officer protecting himself in the line of duty. But this time against Eric Holder and the Federal Bureau of Investigation: "WASHINGTON — Justice Department lawyers will recommend that no civil rights charges be brought against the police officer who fatally shot an unarmed teenager in Ferguson, Mo., after an F.B.I. investigation found no evidence to support charges, law enforcement officials said Wednesday." http://www.nytimes.com/2015/01/22/us/justice-department-ferguson-civil-rights-darren-wilson.html?ref=us&_r=0

  3. Dr wail asfour lives 3 hours from the hospital,where if he gets an emergency at least he needs three hours,while even if he is on call he should be in a location where it gives him max 10 minutes to be beside the patient,they get paid double on their on call days ,where look how they handle it,so if the death of the patient occurs on weekend and these doctors still repeat same pattern such issue should be raised,they should be closer to the patient.on other hand if all the death occured on the absence of the Dr and the nurses handle it,the nurses should get trained how to function appearntly they not that good,if the Dr lives 3 hours far from the hospital on his call days he should sleep in the hospital

  4. It's a capital offense...one for you Latin scholars..

  5. I would like to suggest that you train those who search and help others, to be a Confidential Intermediary. Original Birth Certificates should not be handed out "willie nillie". There are many Birth Parents that have never told any of their families about, much less their Husband and Children about a baby born prior to their Mother's marriage. You can't go directly to her house, knock on her door and say I am the baby that you had years ago. This is what an Intermediary does as well as the search. They are appointed by by the Court after going through training and being Certified. If you would like, I can make a copy of my Certificate to give you an idea. you will need to attend classes and be certified then sworn in to follow the laws. I still am active and working on 5 cases at this time. Considering the fact that I am listed as a Senior Citizen, that's not at all bad. Being Certified is a protection for you as well as the Birth Mother. I have worked with many adoptees as well as the Birth Parents. They will also need understanding, guidance, and emotional help to deal with their own lost child and the love and fear that they have had locked up for all these years. If I could talk with those involved with the legal end, as well as those who do the searches and the Birth Mothers that lost their child, we JUST might find an answer that helps all of those involved. I hope that this will help you and others in the future. If you need to talk, I am listed with the Adoption Agencies here in Michigan. They can give you my phone number. My email address is as follows jatoz8@yahoo.com. Make sure that you use the word ADOPTION as the subject. Thank you for reading my message. Jeanette Abronowitz.

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