Opinions Dec. 22, 2011

December 22, 2011
7th Circuit Court of Appeals
M.B., by his parents and next friends, Damian Berns and Amy Berns v. Hamilton Southeastern Schools and Hamilton-Boone-Madison Special Services
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge Tanya Walton Pratt.
Civil. Affirms summary judgment in favor of the schools on the Berns’ suit that the schools violated the Individuals with Disabilities Education Act and the provisions relating to special education in the Indiana Administrative Code by failing to provide M.B. with a free appropriate public education. There was nothing unreasonable about the determination by the hearing officer, the Board of Special Education Appeals, and the District Court in finding that M.B. was making progress under his individualized education program. The Berns are also not entitled to reimbursement for the costs to place M.B. in a learning center or for attorney fees.

Opinions Dec. 21, 2011

December 21, 2011
Indiana Court of Appeals
Hans Maldonado v. State of Indiana (NFP)
Criminal. Affirms conviction of Class C misdemeanor operating a vehicle while intoxicated.

Opinions Dec. 20, 2011

December 20, 2011
Indiana Court of Appeals
Christopher A. Bryant v. State of Indiana
Criminal. Affirms convictions of and sentences for two counts of Class A felony dealing in a narcotic drug, Class A misdemeanor resisting law enforcement, Class A misdemeanor marijuana possession and Bryant’s admission that he is a habitual substance offender, holding that his extensive arrest record renders harmless any error the trial court may have made.

Opinions Dec. 19, 2011

December 19, 2011
Indiana Court of Appeals
Capitol Construction Services, Inc. v. Amy Gray, as Personal Rep. of the Estateof Clinton Gray and All One, Inc.
Civil tort. Affirms trial court’s grant of partial summary judgment in favor of Gray’s estate, holding that per terms of the contract, Capitol Construction was obligated to provide fall protection for all subcontractors.

Opinions Dec. 16, 2011

December 16, 2011
Indiana Court of Appeals
Justin M. Corwin v. State of Indiana
Criminal. Reverses conviction of Class C felony possession of a controlled substance, holding that a police officer exceeded the limits of a search as defined by Terry v. Ohio, 392 U.S. 1, 30 (1968), and therefore, the evidence he obtained in the search should not have been admitted at trial.

Opinions Dec. 15, 2011

December 15, 2011
7th Circuit Court of Appeals
Adrianna Brown, et al. v. Columbia Sussex Corp., et al.
U.S. District Court, Northern District of Indiana, Hammond Division, Chief Judge Philip P. Simon.
Civil. Affirms dismissal of 53 of the 224 plaintiffs who had their civil rights and breach of contract claims dismissed because they continually missed both formal and informal deadlines. Holds that, in the context of a multi-party or multi-claim suit, a premature notice of appeal from the dismissal of a party or claim will ripen upon the entry of a belated Rule 54(b) judgment under Rule 4(a)(2) and FirsTier. The District Court was within its discretion to find that the appellants acted willfully, in bad faith, or with fault.

Opinions Dec. 14, 2011

December 14, 2011
7th Circuit Court of Appeals
Susan Kellar v. Summit Seating Inc.
U.S. District Court, Northern District of Indiana, South Bend Division, Magistrate Judge Christopher A. Nuechterlein
Civil. Affirms summary judgment for Summit Seating on Kellar’s lawsuit that she is entitled to overtime under the Fair Labor Standards Act for work performed before the official start of her work shift. Concludes that Summit did not know or have reason to know that Kellar was working before her shift.

Opinions Dec. 13, 2011

December 13, 2011
Indiana Supreme Court
Steven Spangler and Heidi Brown v. Barbara Bechtel, Expectations Women's Health and
Childbearing Center, and St. Vincent Randolph Hospital

Civil. Reverses summary judgment in favor of Bechtel and the health and childbearing center. The parents’ separate actions seeking damages for emotional distress from experiencing the stillbirth of their child are not barred by the Indiana Child Wrongful Death Act or the Indiana Medical Malpractice Act. Remands for further proceedings.

Opinions Dec. 12, 2011

December 12, 2011
Indiana Court of Appeals
Douglas Garwood v. State of Indiana (NFP)
Criminal. Affirms conviction of and sentence for Class B felony dealing in methamphetamine and reverses conviction of Class D felony possession of precursors with intent to manufacture methamphetamine.

Opinions Dec. 9, 2011

December 9, 2011
Indiana Court of Appeals
Scott Pattison v. State of Indiana
Criminal. Affirms conviction of felony murder. The circumstantial evidence is sufficient to establish beyond a reasonable doubt that Pattison killed his wife. Affirms in all other respects.

Opinions Dec. 8, 2011

December 8, 2011
Indiana Court of Appeals
Term. of Parent-Child Rel. of C.M., G.M., and R.M.; A.M. (Mother) and C.M. (Father) v. Indiana Dept. of Child Services, Dearborn County Office
Juvenile. Reverses termination of mother A.M.’s parental rights. The Department of Child Services did not establish by clear and convincing evidence the requisite statutory elements to support the termination. Judge Darden concurs in result.

Opinions Dec. 7, 2011

December 7, 2011
Indiana Court of Appeals
In the Matter of the Estate of Melissa K. Patrick: Yvonne Griffith v. Jason Patrick
Estate, supervised. Affirms denial of the estate’s motion to dismiss a petition for survivor’s allowance filed by Melissa Patrick’s surviving spouse, Jason. The trial court did not commit clear error in determining that Ind. Code 29-1-2-14 did not divest Patrick of a survivor’s share of the estate with his late wife.

Opinions Dec. 6, 2011

December 6, 2011
Indiana Court of Appeals
A.A.Q. v. State of Indiana
Juvenile. Affirms judgment of juvenile court finding A.A.Q. a juvenile delinquent for committing an act that would have been Class A misdemeanor trespass if committed by an adult. Holds that A.A.Q. and his parents waived the right to counsel.

Opinions Dec. 5, 2011

December 5, 2011
Indiana Court of Appeals
Linzy C. Clark v. State of Indiana
Criminal. Reverses trial court’s denial of Clark’s motion to dismiss the notice of probation violation. After the probation was transferred from Madison County to Tippecanoe County, the Tippecanoe County court held supervisory authority. It received notice of the probation violation, but Madison County – the sentencing court – did not, nor did it file the notice of probation violation within 45 days of receiving the notice of violation.

Opinions Dec. 2, 2011

December 2, 2011
Indiana Court of Appeals
Billy Jack Steele v. State of Indiana (NFP)
Criminal. Affirms eight-year sentence for Class C felony robbery.

Opinions Dec. 1, 2011

December 1, 2011
7th Circuit Court of Appeals
Bridgett Stevens v. Housing Authority of South Bend, Indiana, et al. and State of Indiana
U.S. District Court, Northern District of Indiana, South Bend Division, Judge Rudy Lozano.
Civil. Affirms summary judgment for defendants on Stevens’ federal claims alleging violations of the Fair Housing Act and the 14th Amendment and the decline by the court to exercise jurisdiction over the remaining state law claims, dismissing them without prejudice. Injunctive relief is no longer available to Stevens because she voluntarily left her public housing apartment after receiving two additional notices indicating that she must leave due to violating housing policy. The first notice was therefore lawfully issued, and Stevens has no claim for emotional distress caused by a wholly lawful action.

Opinions Nov. 30, 2011

November 30, 2011
Indiana Supreme Court
Christopher Jewell v. State of Indiana
Criminal. Affirms denial of Jewell’s motion to suppress recorded phone conversations between him and his former stepdaughter and finds his sentence is appropriate for six counts relating to child molesting, sexual misconduct with a minor, and child seduction. Holds that under the broader protections of Article 1, Section 13 of the Indiana Constitution, the right to counsel is violated only where the different offense is inextricably intertwined with the charge on which counsel is already representing the defendant.

Opinions Nov. 29, 2011

November 29, 2011
Indiana Supreme Court
David Hopper v. State of Indiana
Post conviction. Grants rehearing to address the role and necessity of advising someone of the risks of dealing with prosecutors without a lawyer. The post-conviction court was right that Hopper’s waiver of counsel was voluntary and intelligent. Finds Hopper’s contention that advisement language should be mandatory in all stages of all cases with all defendants is misplaced. Justice Rucker dissents with separate opinion, in which Justice Sullivan concurs.

Opinions Nov. 28, 2011

November 28, 2011
Indiana Court of Appeals
Jennings Daugherty v. State of Indiana
Criminal. Affirms convictions of Class B felony possession of cocaine and Class D felony maintaining a common nuisance. Daugherty’s arguments on appeal are insufficient to demonstrate reversible error. Affirms the admission of the state’s evidence.

Opinions Nov. 23, 2011

November 23, 2011
7th Circuit Court of Appeals
Monica Del Carmen Gonzalez-Servin, et. al. v. Fort Motor Company, et. al.
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge Sarah Evans Barker.
Civil. In a consolidated appeal, the court affirmed decisions by District Courts in Indiana and Illinois granting forum non conveniens in multidistrict litigation. In the Indiana case, the court held that Judge Sarah Evans Barker was acting within her discretion in deciding that the courts of Mexico would be better suited to adjudication of a lawsuit by Mexican citizens arising from the death of another Mexican citizen in an accident in Mexico.

Opinions Nov. 22, 2011

November 22, 2011
Indiana Supreme Court
Lisa Gray v. State of Indiana

Criminal. Reinstates trial court’s guilty verdict on Gray’s charge of Class A misdemeanor possession of marijuana, rejecting the argument that insufficient evidence existed to support her conviction. Holds that the word of two police officers held more influence with the trial court than the testimony of Gray’s son, whom Gray appeared to be coaching during trial about how to answer questions.

Opinions Nov. 21, 2011

November 21, 2011
Indiana Court of Appeals
Jim Norris v. Personal Finance
Small claim. Reverses trial court’s decision denying Norris relief, holding that the trial court erred in concluding that under Trial Rule 4.16, Norris’ parents – when served a notice of claim against Norris – had a duty to inform the court that Norris did not live with them.

Opinions Nov. 18, 2011

November 18, 2011
Indiana Court of Appeals
David Marks and Karen Marks v. Northern Indiana Public Service Company
Civil tort. On petition for rehearing, affirms original decision in all respects, holding that the semi-trailer from which David Marks fell was owned by a subcontractor of a general contractor, and therefore Northern Indiana Public Service Co. is not liable for the accident.

Opinions Nov. 17, 2011

November 17, 2011
Indiana Supreme Court
Indiana Spine Group, PC v. Pilot Travel Centers, LLC
Miscellaneous. Reverses decision by Worker’s Compensation Board dismissing as untimely Indiana Spine Group’s application for adjustment of claim. Holds that the Worker’s Compensation Act is silent on the question of the limitation period applicable to a medical provider’s claim seeking payment of outstanding bills for authorized treatment to an employer’s employee. Holds that the limitation period contained in the general statute of limitation controls. Remands for further proceedings consistent with opinion.

Opinions Nov. 16, 2011

November 16, 2011
Indiana Court of Appeals
Green River Motel Management of Dale, LLC, et al. v. State of Indiana
Civil plenary. Affirms denial of Green River’s motion for summary judgment. A state action that merely alters the flow of traffic or causes access by a more circuitous route can’t give rise to a taking as a matter of law. Affirms on all other respects.
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  1. Heritage, what Heritage? The New Age is dawning .... an experiment in disordered liberty and social fragmentation is upon us .... "Carmel City Council approved a human rights ordinance with a 4-3 vote Monday night after hearing about two hours of divided public testimony. The ordinance bans discrimination on the basis of sexual orientation or gender identity, among other traits. Council members Rick Sharp, Carol Schleif, Sue Finkam and Ron Carter voted in favor of it. The three council members opposing it—Luci Snyder, Kevin Rider and Eric Seidensticker—all said they were against any form of discrimination, but had issues with the wording and possible unintended consequences of the proposal." Kardashian is the new Black.

  2. Can anyone please tell me if anyone is appealing the law that certain sex offenders can't be on school property. How is somebody supposed to watch their children's sports games or graduations, this law needs revised such as sex offenders that are on school property must have another non-offender adult with them at all times while on school property. That they must go to the event and then leave directly afterwards. This is only going to hurt the children of the offenders and the father/ son mother/ daughter vice versa relationship. Please email me and let me know if there is a group that is appealing this for reasons other than voting and religion. Jaramieharness@gmail.com Thank you.

  3. Should any attorney who argues against the abortion industry, or presents arguments based upon the Founders' concept of Higher Law, (like that marriage precedes the State) have to check in with the Judges and Lawyers Assistance Program for a mandatory mental health review? Some think so ... that could certainly cut down on cases such as this "cluttering up" the SCOTUS docket ... use JLAP to deny all uber conservative attorneys licenses and uber conservative representation will tank. If the ends justify the means, why not?

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