Opinions

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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Opinions April 6, 2011

April 6, 2011
Indiana Court of Appeals
Gariup Construction Co. v. Carras-Szany-Kuhn & Associates, et al.
45A04-1007-PL-429
Civil plenary. Affirms summary judgment in favor of the architect Carras-Szany-Kuhn and the successful bidder and denied unsuccessful bidder Gariup Construction’s claim alleging the architect; Behling & Son, the successful bidder; and others colluded to restrict bidding in violation of the Indiana Antitrust Act. The designated evidence doesn’t present a genuine issue of material fact from which a factfinder could reasonably infer that the architect and successful bidder colluded to restrict bidding. Declines to find that the architect and successful bidder are entitled to appellate attorneys fees.
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Opinions April 5, 2011

April 5, 2011
7th Circuit Court of Appeals
Stephen Radentz, et al., v. Marion County, et al.
10-1523
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge William T. Lawrence.
Civil. Reverses ruling from District Court in favor of defendants in discrimination lawsuit. Plaintiffs were able to support claim that their termination from employment was race-based, and did not result in significant financial gain, as the defendants claimed.
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  1. It's a big fat black mark against the US that they radicalized a lot of these Afghan jihadis in the 80s to fight the soviets and then when they predictably got around to biting the hand that fed them, the US had to invade their homelands, install a bunch of corrupt drug kingpins and kleptocrats, take these guys and torture the hell out of them. Why for example did the US have to sodomize them? Dubya said "they hate us for our freedoms!" Here, try some of that freedom whether you like it or not!!! Now they got even more reasons to hate us-- lets just keep bombing the crap out of their populations, installing more puppet regimes, arming one faction against another, etc etc etc.... the US is becoming a monster. No wonder they hate us. Here's my modest recommendation. How about we follow "Just War" theory in the future. St Augustine had it right. How about we treat these obvious prisoners of war according to the Geneva convention instead of torturing them in sadistic and perverted ways.

  2. As usual, John is "spot-on." The subtle but poignant points he makes are numerous and warrant reflection by mediators and users. Oh but were it so simple.

  3. ACLU. Way to step up against the police state. I see a lot of things from the ACLU I don't like but this one is a gold star in its column.... instead of fighting it the authorities should apologize and back off.

  4. Duncan, It's called the RIGHT OF ASSOCIATION and in the old days people believed it did apply to contracts and employment. Then along came title vii.....that aside, I believe that I am free to work or not work for whomever I like regardless: I don't need a law to tell me I'm free. The day I really am compelled to ignore all the facts of social reality in my associations and I blithely go along with it, I'll be a slave of the state. That day is not today......... in the meantime this proposed bill would probably be violative of 18 usc sec 1981 that prohibits discrimination in contracts... a law violated regularly because who could ever really expect to enforce it along the millions of contracts made in the marketplace daily? Some of these so-called civil rights laws are unenforceable and unjust Utopian Social Engineering. Forcing people to love each other will never work.

  5. I am the father of a sweet little one-year-old named girl, who happens to have Down Syndrome. To anyone who reads this who may be considering the decision to terminate, please know that your child will absolutely light up your life as my daughter has the lives of everyone around her. There is no part of me that condones abortion of a child on the basis that he/she has or might have Down Syndrome. From an intellectual standpoint, however, I question the enforceability of this potential law. As it stands now, the bill reads in relevant part as follows: "A person may not intentionally perform or attempt to perform an abortion . . . if the person knows that the pregnant woman is seeking the abortion solely because the fetus has been diagnosed with Down syndrome or a potential diagnosis of Down syndrome." It includes similarly worded provisions abortion on "any other disability" or based on sex selection. It goes so far as to make the medical provider at least potentially liable for wrongful death. First, how does a medical provider "know" that "the pregnant woman is seeking the abortion SOLELY" because of anything? What if the woman says she just doesn't want the baby - not because of the diagnosis - she just doesn't want him/her? Further, how can the doctor be liable for wrongful death, when a Child Wrongful Death claim belongs to the parents? Is there any circumstance in which the mother's comparative fault will not exceed the doctor's alleged comparative fault, thereby barring the claim? If the State wants to discourage women from aborting their children because of a Down Syndrome diagnosis, I'm all for that. Purporting to ban it with an unenforceable law, however, is not the way to effectuate this policy.

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