Opinions

Opinions May 30, 2012

May 30, 2012
Indiana Court of Appeals
Clifton Ervin v. State of Indiana
29A05-1109-CR-454
Criminal. Affirms grant of a portion of Ervin’s motion to suppress. The trial court properly determined that the evidence seized by the uniformed on-duty police officers should not be suppressed pursuant to the exclusionary rule. Remands for trial.
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Opinions May 29, 2012

May 29, 2012
Indiana Court of Appeals
Jason Tye Myers v. Charles R. Deets III, Deets & Kennedy, and Great American Insurance Group
79A02-1108-CT-771
Civil tort. Affirms summary judgment for Edward Kennedy and the law firm on Myers’ claim for fraud against them and Deets. Myers couldn’t show that either Kennedy or the law firm was liable for Deets’ alleged fraudulent conduct. Reverses grant of Great American Insurance Group’s motion for judgment on the pleadings and remands for further proceedings. Judge Riley concurs in part and dissents in part.
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Opinions May 25, 2012

May 25, 2012
Indiana Court of Appeals
E. Paul Haste v. State of Indiana
03A01-1108-CR-369
Criminal. Dismisses Haste’s appeal of his conviction of and sentence for Class B felony dealing in methamphetamine because the order from which he appeals isn’t a final judgment.
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Opinions May 24, 2012

May 24, 2012
Indiana Court of Appeals
Finance Center Federal Credit Union v. Ronnie D. Brand, Debora J. Brand and GMAC Mortgage, LLC
49A02-1111-MF-1089
Mortgage foreclosure. Affirms partial summary judgment in favor of GMAC regarding the priority of the GMAC Mortgage and Finance Center Federal Credit Union mortgages. Equity should not allow the Finance Center to gain an unexpectedly elevated priority because of any negligence of GMAC that did not harm Finance Center.
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Opinions May 23, 2012

May 23, 2012
Indiana Court of Appeals
Gabriel J. Sharkey v. State of Indiana
84A04-1110-CR-550
Criminal. Affirms sentence following guilty plea to Class D felony intimidation. Sharkey’s 18-month suspended sentence is appropriate in light of the nature of the crime and his character.
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Opinions May 22, 2012

May 22, 2012
Indiana Court of Appeals
In the Matter of V.H.; J.H. v. Indiana Dept. of Child Services

49A02-1110-JC-947
Juvenile. Reverses juvenile court’s grant of CHINS petition and vacates the court’s participation order, holding that the CHINS adjudication and participation decree were erroneous.
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Opinions May 21, 2012

May 21, 2012
7th Circuit Court of Appeals
Kristi J. Cortezano v. Salin Bank & Trust Company

United States District Court, Southern District of Indiana, Indianapolis Division, Judge Sarah Evans Barker.
11-1631
Civil. Affirms District court’s grant of summary judgment in favor of Salin Bank & Trust Company, holding the bank did not violate Cortezano’s rights by firing her due to her husband’s immigration status. Remands to the District Court to strike from the record the names of Cortezano’s three children, as the District Court had not previously ruled on that motion.
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Opinions May 18, 2012

May 18, 2012
Indiana Court of Appeals
In Re the Adoption of S.J., R.W. v. G.C. and J.C.
04A03-1110-AD-449
Adoption. Dismisses appeal from R.W., the biological father of S.J., holding than an order that states his consent is not required for the petition to proceed neither grants nor denies S.J.’s adoption and is not a final, appealable action.
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Opinions May 17, 2012

May 17, 2012
Indiana Court of Appeals
Heriberto Suarez v. State of Indiana
02A05-1106-PC-325
Post conviction. Affirms denial of petition for post-conviction relief. The court did not err in denying his claim that he received ineffective assistance of trial counsel.
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Opinions May 16, 2012

May 16, 2012
Indiana Court of Appeals
Robert A. Turner v. State of Indiana (NFP)
62A01-1111-CR-514
Criminal. Affirms imposition of public defender fee.
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Opinions May 14, 2012

May 14, 2012
Indiana Court of Appeals
Dana L. Lewis, Jr. v. State of Indiana
40A01-1106-CR-276
Criminal. Reverses denial of Lewis’ motion to suppress statements he made during a police interview regarding an alleged sex crime. Lewis’ question, “Can I get a lawyer?” constituted an unequivocal invocation of his Fifth Amendment right to counsel.
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Opinions May 11, 2012

May 11, 2012
7th Circuit Court of Appeals
BMD Contractors Inc. v. Fidelity and Deposit Company of Maryland
11-1345
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge Tanya Walton Pratt.
Civil. Affirms summary judgment for Fidelity and Deposit Company of Maryland. The Industrial Power/BMD Contractors subcontract expressly provides that Industrial Power’s receipt of payment is a condition precedent to its obligation to pay BMD. Because Industrial Power was never obligated to pay BMD in the first place, BMD may not recover against Fidelity on the payment bond. Also holds that pay-if-paid clauses are not void under Indiana public policy.
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Opinions May 10, 2012

May 10, 2012
Indiana Court of Appeals
Allison Riggle v. State of Indiana
49A05-1109-CR-472
Criminal. Reverses conviction of Class A misdemeanor possession of marijuana. The traffic stop was invalid because Riggle did not commit a traffic violation. Remands with instructions to vacate her conviction.
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Opinions May 9, 2012

May 9, 2012
Indiana Court of Appeals
Ashanti Clemons v. State of Indiana
49A02-1108-PC-737
Post conviction. Affirms denial of amended petition for post-conviction relief. Clemons was not denied effective assistance of his trial and appellate counsel.
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Opinions May 7, 2012

May 7, 2012
Indiana Court of Appeals
Luis Ramos v. State of Indiana (NFP)

49A04-1103-CR-138
Criminal. Affirms sentences for felony murder and Class A misdemeanor possession of a handgun without a license, but remands for correction of sentence, holding sentences were to be served consecutively, not concurrently.
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Opinions May 3, 2012

May 3, 2012
Indiana Court of Appeals
M.O. v. Indiana Dept. of Insurance, Indiana Patient's Compensation Fund
53A05-1112-PL-682
Civil plenary. Affirms conclusion that Indiana Code 24-4.6-1-101 (1993), with its 8 percent interest rate, applies to payments to M.O, a successful malpractice claimant, and that interest began to accrue on the 15th day of the month following the end of the claim period in which the claim was filed with the Patient’s Compensation Fund.
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Opinions May 2, 2012

May 2, 2012
Indiana Court of Appeals
Andrew C. Kesling, individually and as Trustee of the Andrew C. Kesling Trust v. Peter C. Kesling, et al.
45A03-1106-PL-271
Civil plenary. Reverses judgment in favor of father Peter Kesling that found he was entitled to rescission of stock purchase agreements entered into on June 25, 2004. Finds that Andrew Kesling’s trust declaration did not deprive him status as a shareholder and that he was a shareholder when he entered into the purchase agreements with Peter Kesling. Remands for the court to rule on the claims raised by Andrew Kesling’s siblings.
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Opinions May 1, 2012

May 1, 2012
7th Circuit Court of Appeals
Securities and Exchange Commission v. First Choice Management Services Inc. et al.; SonCo Holdings LLC v. Joseph D. Bradley, receiver, and ALCO Oil & Gas Co. LLC
11-1702
U.S. District Court, Northern District of Indiana, South Bend Division, Judge Robert L. Miller Jr.
Civil. Affirms order insofar as it determines that SonCo willfully violated the agreed order, but vacates the $600,000 sanction and remands. On remand, the judge can: reimpose the sanction he imposed, upon demonstrating that it is a compensatory remedy for a civil contempt after all; impose a different or perhaps no sanction, whether for civil contempt or for misconduct not characterized as contempt; or proceeding under the rules governing criminal contempts.
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Opinions April 30, 2012

April 30, 2012
Indiana Court of Appeals
D.A. v. State of Indiana
49A02-1108-JV-692
Juvenile. Affirms juvenile court’s decision to order inpatient treatment for D.A. who entered into a plea agreement admitting to Class B misdemeanor battery if committed by an adult and “conditionally” agreed to admit to Class C felony child molesting, if committed by an adult. D.A.’s placement is consistent with the goals for his rehabilitation. The appellate judges do not have jurisdiction to resolve the issue of whether the trial court erred in accepting his conditional plea to the child molesting charge because there was no evidence of D.A.’s intent with regard to the molesting. The conditional plea is the equivalent to a withheld judgment so there is no final judgment or appealable final order from which to appeal.
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Opinions April 27, 2012

April 27, 2012
Indiana Court of Appeals
In the Matter of V.C., Child Alleged to be in Need of Services v. Indiana Dept. of Child Services
79A02-1112-JC-1172
Juvenile. Affirms determination that V.C. is a child in need of services. The juvenile court did not erroneously deny father’s request to issue a subpoena to the maternal aunt. Father also failed to demonstrate good cause for granting his request for a continuance, so the juvenile court acted within its discretion in denying his request.
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Opinions April 26, 2012

April 26, 2012
Indiana Court of Appeals
Christopher King v. Karen Patrick (NFP)
49A02-1105-PL-444
Civil plenary. Reverses grant of partial summary judgment against Christopher King on Karen Patrick’s complaint against him alleging breach of contract. Remands for further proceedings.
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Opinions April 25, 2012

April 25, 2012
Indiana Court of Appeals
John Ludack v. State of Indiana
49A02-1109-CR-930
Criminal. Affirms convictions of and aggregate 130-year sentence for two counts of Class A felony child molesting and being a habitual offender. Defense counsel, by first asking the detective whether Ludack had admitted the allegations of child molestation during the interview, opened the door to the detective’s testimony that Ludack neither admitted nor denied the allegations of child molesting and just asked to stop speaking. Ludack also failed to prove his sentence is inappropriate.
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Opinions April 24, 2012

April 24, 2012
Indiana Court of Appeals
George Clements v. Kimberly Hall and Stanley Harmon
06A04-1106-MI-282
Miscellaneous. Reverses trial court’s award of summary judgment for Kimberly Hall and Stanley Harmon, holding their attorney failed to notify George Clements and his attorney that a motion had been filed. Remands for further proceedings consistent with its opinion.
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Opinions April 23, 2012

April 23, 2012
Indiana Court of Appeals
Richard Leggs v. State of Indiana
49A02-1105-CR-522
Criminal. Affirms convictions of and sentences for one count of Class B felony criminal confinement and one count each of Class C felony intimidation, Class C felony criminal recklessness, and Class A misdemeanor resisting law enforcement. Reverses one count of Class B felony criminal confinement, due to the continuing crime doctrine and remands for resentencing.
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Opinions April 20, 2012

April 20, 2012
Indiana Court of Appeals
Andre M. Perry v. State of Indiana (NFP)
45A05-1108-CR-397
Criminal. Affirms convictions of murder, Class A felony attempted murder and Class D felony residential entry.
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  1. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  2. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  3. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

  4. Here's an idea...how about we MORE heavily regulate the law schools to reduce the surplus of graduates, driving starting salaries up for those new grads, so that we can all pay our insane amount of student loans off in a reasonable amount of time and then be able to afford to do pro bono & low-fee work? I've got friends in other industries, radiology for example, and their schools accept a very limited number of students so there will never be a glut of new grads and everyone's pay stays high. For example, my radiologist friend's school accepted just six new students per year.

  5. I totally agree with John Smith.

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