Opinions

Opinions June 28, 2010

June 28, 2010
Indiana Supreme Court
Richard Patrick Wilson and Billy Don Wilson v. Gene Isaacs, Sheriff of Cass County, and Brad Craven
09S05-1003-CV-149
Civil. Reverses grant of summary judgment as to the plaintiffs’ liability claims against the sheriff for the conduct of Deputy Brad Craven. Affirms summary judgment for claims against Craven personally. Holds that a law enforcement officer's use of force in excess of the reasonable force authorized by statute is not shielded from liability under the "enforcement of a law" immunity provided in Indiana Code § 34-13-3-3(8) and that genuine issues of fact exist, precluding summary judgment. Chief Justice Shepard dissents without opinion.
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Opinions June 25, 2010

June 25, 2010

7th Circuit Court of Appeals

Lincoln National Life Insurance Co. v. Peter S. Bezich, individually and on behalf of a class of others similarly situated
10-8013
U.S. District Court, Northern District of Indiana, Hammond Division, Judge Joseph Van Bokkelen
Civil. Remands to state court. Concludes Bezich’s claim “relates to the rights, duties, ... and obligations relating to or created by or pursuant to ... [a] security,” as defined in the 1933 Act, therefore the District Court has no jurisdiction.

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Opinions June 25 2010 ILD

June 25, 2010

7th Circuit Court of Appeals

Lincoln National Life Insurance Co. v. Peter S. Bezich, individually and on behalf of a class of others similarly situated
10-8013
U.S. District Court, Northern District of Indiana, Hammond Division, Judge Joseph Van Bokkelen
Civil. Remands to state court. Concludes Bezich’s claim “relates to the rights, duties, ... and obligations relating to or created by or pursuant to ... [a] security,” as defined in the 1933 Act, therefore the District Court has no jurisdiction.

Indiana Supreme Court posted no opinions before IL deadline.

Indiana Court of Appeals

Weigand Construction Co. Inc. and Ohio Farmers Insurance Co. v. Stephens Fabrication Inc. and Ball State University Board of Trustees
18A02-0910-CV-953
Civil. Concludes Stephens’ claims against Weigand, Weigand’s Surety, and Ball State University survived bankruptcy proceedings. Therefore, Stephens is entitled to the unpaid sums under the base contract: $39,408.09 plus attorney fees, prejudgment interest including the periods of time before and during the bankruptcy proceeding, postjudgment interest, and costs of collection to Stephens. Also concludes Stephens’ claim for additional compensation was untimely under the terms of the relevant contracts and that Weigand is entitled to enforce the contractual provisions in this regard.

M.B. v. State of Indiana (NFP)
89A01-1001-JV-59
Juvenile. Affirms M.B.’s commitment to the Indiana Department of Correction.

Involuntary Termination of Parent-Child Relationship of Z.H.; A.H. v. Indiana Dept. of Child Services (NFP)
20A03-1002-JT-49
Juvenile. Affirms termination of parental rights.

In the Matter of R.J.K., a child alleged to be a delinquent child v. State of Indiana (NFP)
02A05-0909-JV-539
Juvenile. Affirms court’s finding that R.J.K. was a delinquent child who committed the offense of sexual battery, a Class D felony if committed by an adult.

Indiana Tax Court posted no opinions before IL deadline.

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Opinions June 24, 2010

June 24, 2010
Indiana Court of Appeals
Douglas Covey v. State of Indiana
30A01-0906-CR-311
Criminal. Affirms convictions of dealing in methamphetamine as a Class A felony, possession of methamphetamine as a Class B felony, possession of methamphetamine as a Class B felony, possession of marijuana as a Class A misdemeanor, and possession of paraphernalia a Class A misdemeanor. The state presented sufficient evidence to prove that Crosby lived in an “apartment complex” and thus Covey delivered the methamphetamine and possessed the methamphetamine in or within 1,000 feet of a “family housing complex.” Because Covey never placed the mitigating factors of Indiana Code Section 35-48-4-16(b) at issue, the trial court did not commit fundamental error by not instructing the jury on those mitigating factors.
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Opinions June 24, 2010 ILD

June 24, 2010

Indiana Supreme Court had posted no opinions at IL deadline.

Indiana Court of Appeals

Donald Wilson v. State of Indiana (NFP)
10A04-1001-PC-12
Post conviction. Affirms denial of petition for post-conviction relief.

Androuckoo Jones v. State of Indiana (NFP)
49A02-0911-CR-1108
Criminal. Affirms convictions of two Class A misdemeanors, one for domestic battery, and one for resisting law enforcement.

Term. of Parent-Child Rel. of G.W.; J.W. v. IDCS (NFP)
48A02-0910-JV-1042
Juvenile. Affirms involuntary termination of parental rights.

Carleon M. Ragsdale v. State of Indiana (NFP)
02A03-0912-CR-595
Criminal. Affirms sentence following guilty plea to Class D felonies criminal recklessness and resisting law enforcement, and Class A misdemeanor possession of a firearm by a domestic batterer.

James Walsh v. State of Indiana (NFP)
52A05-0911-CR-667
Criminal. Reverses sentence following guilty plea to Class B felony burglary and admission to being a habitual offender. Remands with instructions.

R.D. v. State of Indiana (NFP)
49A02-0909-JV-840
Juvenile. Affirms adjudication for committing what would be Class D felony criminal recklessness if committed by an adult.

Anthony H. Taylor v. State of Indiana (NFP)
71A03-0912-CR-602
Criminal. Reverses adjudication as a habitual offender.

Terrence Hopson v. State of Indiana (NFP)
29A02-0912-CR-1239
Criminal. Affirms conviction of Class B felony burglary.

Virgil J. Smith v. State of Indiana (NFP)
85A02-1001-CR-176
Criminal. Revises sentence following guilty plea to Class B felony robbery and remands for the trial court to order concurrent sentences for the robbery conviction and an unrelated case.

Robertson Developers v. Jerry Hodges, et al. (NFP)
18A02-0910-CV-1051
Civil. Affirms judgment in favor of defendants Hodges and others upon a claim for payment of lease. Remands for determination of reasonable attorney fees.

K. K. B. v. R. K. B. (NFP)
26A05-0910-CV-595
Civil. Affirms evidence supports all but one of the findings in the order entry awarding physical custody of children to father. Reverses finding that Mother did not adequately investigate S.B.’s allegation of sexual abuse is not supported by the evidence. Remands for the dissolution court to reconsider the remaining findings and the other evidence from the hearing on final custody in order to determine what physical custody order is in the children’s best interests, or, if no change to the custody award is indicated, to so state.

Term. of Parent-Child Rel. of J.K., et al.; S.K. v. IDCS (NFP)

71A03-1002-JT-94
Juvenile. Affirms termination of parental rights.

Indiana Tax Court had posted no opinions at IL deadline.

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Opinions June 22, 2010

June 22, 2010
7th Circuit Court of Appeals
Medical Assurance Co., Inc. v. Amy Hellman, et al.
08-2887
U. S. District Court, Northern District of Indiana, Hammond Division, Judge Allen Sharp.
Civil. Medical Assurance appealed the District Court’s stay on the company’s declaratory judgment action. The company asked the court to declare that Dr. Mark Weinberger breached his contract obligations when he disappeared while on vacation and hasn’t been participating in his defense in more than 350 medical malpractice claims.
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Opinions June 21, 2010

June 21, 2010
Indiana Court of Appeals
Philip Cleer v. State of Indiana
49A02-0912-CR-1193
Criminal. Affirms conviction of Class C misdemeanor operating a vehicle with a blood alcohol content between 0.08 and 0.15. Cleer didn’t establish that the operation of a sobriety checkpoint violates the separation of powers provision of the Indiana Constitution.
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Opinions June 18, 2010

June 18, 2010

Indiana Supreme Court
Christine Dugan v. Mittal Steel, USA, Inc., et al.
45S05-1002-CV-121
Civil. Affirms summary judgment for Mittal Steel USA and Jay Komorowski. Of the two alleged occasions of defamation per se at issue, the one asserted in paragraph 7 of Dugan’s complaint does not constitute defamation per se. Although the statement alleged in paragraph 6 of the complaint qualifies as defamation per se, there is no genuine issue of fact undermining the defendants' claim of qualified privilege.

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Opinions June 17, 2010

June 17, 2010
Indiana Court of Appeals
Russel Howard v. American Family Mutual Insurance Co.
87A01-0910-CV-512
Civil. Reverses grant of American Family’s motion to substitute the underinsured driver as the sole defendant at trial in Howard’s suit following an accident. Indiana law does not allow the underinsured driver’s substitution as a nominal defendant in these circumstances.
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Opinions June 16, 2010

June 16, 2010
Indiana Court of Appeals
M.T. v. State of Indiana
49A04-0908-JV-484
Juvenile. Reverses modification of probation and commitment to the Department of Correction. The state presented no evidence of the probation violations it alleged and the state violated M.T.’s due process rights.
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Opinions June 15, 2010

June 15, 2010
Indiana Court of Appeals
Jeffrey D. Boggs v. State of Indiana
40A01-0907-CR-346
Criminal. Affirms convictions of and 40-year sentence for Class B felony attempted dealing in methamphetamine, two counts of Class C felony possession of a precursor while in possession of a firearm, Class D felony possession of methamphetamine, Class A misdemeanor possession of marijuana, and finding that Boggs is a habitual offender. The police officer had a legitimate reason for being on Boggs’ property and didn’t move anything to observe the gas tank inside of Boggs’ car. The state presented sufficient evidence to prove the identity of the substances found and to support the habitual offender finding. Remands for the trial court to correct the sentencing order.
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Opinions June 14, 2010

June 14, 2010
Indiana Court of Appeals
Ronald D. Dean v. Kristine M. Weaver
20A03-1001-MI-9
Civil. Affirms order denying Dean's motion seeking collection of his expert-witness fees from Weaver. The Indiana trial court which had acquired restrictive jurisdiction pursuant to Indiana Trial Rule 28(E) to conduct ancillary discovery proceedings lacks the jurisdiction to reopen the cause and hear Dean’s motion on the payment of his fees.
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Opinions June 14, 2010 ILD

June 14, 2010

Indiana Supreme Court had posted no opinions at IL deadline.

Indiana Court of Appeals
Ronald D. Dean v. Kristine M. Weaver
20A03-1001-MI-9
Civil. Affirms order denying Dean's motion seeking collection of his expert-witness fees from Weaver. The Indiana trial court that had acquired restrictive jurisdiction pursuant to Indiana Trial Rule 28(E) to conduct ancillary discovery proceedings lacks the jurisdiction to reopen the cause and hear Dean’s motion on the payment of his fees.

Steve Pigg v. State of Indiana
52A02-0907-CV-666
Civil. Affirms denial of Pigg's motion for delivery of money from a former attorney. Pigg has waived his claim of injury due to lack of a hearing by failing to request a hearing; but, waiver notwithstanding, Pigg failed to demonstrate any abuse of discretion by the trial court in holding a trial by affidavit. Concludes from the evidence that attorney Kiefer has proven that no unearned portions of the retainer paid for Pigg's representation remained upon Kiefer's termination of that representation.

Diosha L. Lamb v. State of Indiana (NFP)

02A03-0912-CR-591
Criminal. Affirms conviction of Class A misdemeanor invasion of privacy.

Vickie A. Chaffins v. State of Indiana (NFP)

17A03-1001-CR-98
Criminal. Affirms sentence following guilty plea to Class A felony dealing methamphetamine.

Robert D. Storey v. State of Indiana (NFP)
20A05-0911-PC-622
Post conviction. Affirms denial of petition for post-conviction relief.

Christopher Roberts v. State of Indiana (NFP)
34A02-1002-CR-147
Criminal. Affirms sentence following guilty plea to Class D felony theft, Class C felony burglary, and Class D felony possession of stolen property.

Rick Glascoe v. State of Indiana (NFP)

49A04-0911-CR-635
Criminal. Affirms conviction of Class A misdemeanor battery.

S.H. v. Review Board of the Indiana Dept. of Workforce Development and D.O. McComb & Sons, Inc. (NFP)
93A02-0912-EX-1191
Civil. Affirms denial of unemployment benefits.

Indiana Tax Court had posted no opinions at IL deadline.


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Opinions - June 11, 2010

June 11, 2010
Indiana Court of Appeals

Larz A. Elliott v. Rush Memorial Hospital, et al.
70A01-0911-CV-553
Civil. Affirms dismissal of Larz Elliott’s proposed medical malpractice complaint against Rush Memorial Hospital, Carrie Tressler, and Dr. Philip Kingma. Elliott had alleged battery and negligence with respect to the forced catheterization to retrieve a urine sample after a Rush County sheriff’s deputy transported him to Rush Memorial Hospital and represented a court order at the hospital to retrieve a blood sample and a urine sample. Finds trial court erred in concluding that the defendants enjoy complete statutory immunity from any civil liability related to his claims of battery and negligence, but also finds Elliot’s claims fall outside the parameters of the Medical Malpractice Act because he was not a “patient” of the defendants, and that his catheterization clearly was not for his own medical benefit.

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Opinions - June 10, 2010 ILD

June 10, 2010

Today’s opinions
Indiana Supreme Court posted no opinions at IL deadline.

Indiana Court of Appeals

The Guardianship of Edwin T. French Jr.; Gail French Pheffer v. Edwin T. French III
49A02-0908-CV-742
Civil. Reverses and remands trial court’s grant of a motion to dismiss filed by Edwin T. French III. Pheffer raised two issues, consolidated and restated as whether trial court erred by granting Edwin T. French III’s motion to dismiss under Ind. Trial Rule 12(B)(6).
 
Caylin P. Black v. State of Indiana (NFP)
27A04-0909-CR-501
Criminal. Affirms conviction after a jury trial of dealing in cocaine, a Class A felony.
 
Kenneth Wilson v. State of Indiana (NFP)
49A02-0910-CR-1036
Criminal. Reduces conviction of robbery from a Class B felony to a Class C felony, reduces conviction of criminal confinement as a Class C felony to a Class D felony, and remands for resentencing. Affirms trial court’s sentence enhancement by determining Wilson to be a habitual offender was not inappropriate in light of his extensive criminal history.
 
Steven Wilson v. State of Indiana (NFP)
http://media.ibj.com/Lawyer/websites/opinions/index.php?pdf=06101002nhv.pdf
49A02-0910-CR-1047
Criminal. Affirms two convictions of Class B felony child molesting.
 
T.Y. v. State of Indiana (NFP)
49A02-0911-JV-1131
Juvenile. Affirms juvenile court’s true findings that T.Y. committed delinquent acts, which if committed by an adult would constitute two counts of forgery as Class C felonies. Reverses juvenile court’s true findings that T.Y. committed delinquent acts, which if committed by an adult would constitute two counts of attempted theft as Class D felonies. Remands with instructions to vacate T.Y.’s two true findings for attempted theft.

Indiana Tax Court posted no opinions at IL deadline.

 

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Opinions - June 9, 2010

June 9, 2010
Indiana Supreme Court
Walker Whatley v. State of Indiana
49S02-0908-CR-379
Criminal. Affirms Whatley’s conviction of and sentence for Class A felony dealing in cocaine because he was arrested within 1,000 feet of a church that provided services to youth on a regular basis. A jury could properly find that the nearby church was a “youth program center” because it provided a building or structure that on a regular basis offered recreational, social, or other programs or services for persons less than 18 years of age. Justices Boehm and Rucker dissent.
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Opinions - June 8, 2010

June 9, 2010

7th Circuit Court of Appeals
United States of America v. Mario Arita-Campos

09-2368
U.S. District Court, Northern District of Indiana, Hammond Division, Chief Judge Philip P. Simon.
Criminal. Denies motion to dismiss Arita-Campos’ 2005 indictment of re-entry after deportation in violation of 8 U.S.C. Section 1326(a).

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Opinions - June 3, 2010

June 3, 2010
Indiana Court of Appeals
Nathan Brittain v. State of Indiana (NFP)

71A04-0912-CR-688
Criminal. Affirms Brittain’s convictions of two counts of Class C felony child molesting, and two counts of Class B felony attempted child molesting; and affirms aggregate sentence of 10 years executed.
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Opinions - June 2, 2010

June 2, 2010
Indiana Supreme Court
Lisa M. Beckingham v. Review Board of the Indiana Dept. of Workforce Development and Cenveo Corporation
93S02-0907-EX-308
Civil. Reverses and remands judgment of the Review Board, which denied Beckingham’s unemployment benefits for violating her employer’s no-fault attendance rule due to cases of personal illness, illness of her children, and various difficulties involving daycare.
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Opinions - June 1, 2010

June 2, 2010

Indiana Supreme Court
Thomas A. Neu, Elizabeth A. Neu, Wells Fargo Bank, N.A. v. Brett Gibson

49S02-0910-CV-442
Civil. Affirms trial court’s finding that the Neus were not entitled to interest, attorney fees, and costs and that they could not foreclose on their own home or force a sheriff’s sale of the property.

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Opinions - May 26, 2010

May 27, 2010

7th Circuit Court of Appeals
Tracey Wallace and Eric Wallace v. Jonathan S. McGlothan
07-4059
U.S. District Court, Southern District of Indiana, Terre Haute Division, Judge Larry J. McKinney
Civil. Affirms jury verdict in favor of and damages in the amount of $700,000 to the Wallaces following their diversity suit against Dr. McGlothan. The Wallaces sued Dr. McGlothan for medical malpractice following surgery he performed on Tracey Wallace to correct her vision problems. The procedure ended up causing more harm than good.

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Opinions - May 25, 2010

May 25, 2010

Desmond Davidson v. State of Indiana
49S02-1001-CR-41
Criminal. Affirms trial court and agrees with Court of Appeals. Finds that upon the review of sentence appropriateness under Appellate Rule 7, appellate courts may consider all aspects of the penal consequences imposed by the trial judge in sentencing the defendant. Disapproves of the contrary views expressed in Eaton, 825 N.E.2d at 1290–91; Pagan, 809 N.E.2d at 926; and Cox, 792 N.E.2d at 904.

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IBA: Legislative Committee takes action on grandparents rights

March 3, 2010
From IndyBar
The Indiana General Assembly grappled with some hefty family law issues during the recent legislative session and the IBA was up to the challenge.
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DTCI: An updated to Employment Non-discriminaiton Act

March 3, 2010
Takeia Johnson, Amy S.More

Sidebars: Pancake house offers delightful fare

January 20, 2010
Jennifer Lukemeyer, Fred Vaiana
When I travel, all intentions of eating healthy or not eating a lot go right out the window. When I travel with someone who has the same affinity for food, it is even worse. When I travel with my partner Jim Voyles, I make sure I wear pants with extra room because it is going to be a pig-fest all day long as it was on our recent trip to Michigan City.
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  1. Well, maybe it's because they are unelected, and, they have a tendency to strike down laws by elected officials from all over the country. When you have been taught that "Democracy" is something almost sacred, then, you will have a tendency to frown on such imperious conduct. Lawyers get acculturated in law school into thinking that this is the very essence of high minded government, but to people who are more heavily than King George ever did, they may not like it. Thanks for the information.

  2. I pd for a bankruptcy years ago with Mr Stiles and just this week received a garnishment from my pay! He never filed it even though he told me he would! Don't let this guy practice law ever again!!!

  3. Excellent initiative on the part of the AG. Thankfully someone takes action against predators taking advantage of people who have already been through the wringer. Well done!

  4. Conour will never turn these funds over to his defrauded clients. He tearfully told the court, and his daughters dutifully pledged in interviews, that his first priority is to repay every dime of the money he stole from his clients. Judge Young bought it, much to the chagrin of Conour’s victims. Why would Conour need the $2,262 anyway? Taxpayers are now supporting him, paying for his housing, utilities, food, healthcare, and clothing. If Conour puts the money anywhere but in the restitution fund, he’s proved, once again, what a con artist he continues to be and that he has never had any intention of repaying his clients. Judge Young will be proven wrong... again; Conour has no remorse and the Judge is one of the many conned.

  5. Pass Legislation to require guilty defendants to pay for the costs of lab work, etc as part of court costs...

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