Opinions

Opinions Jan. 20, 2016

January 20, 2016
Indiana Court of Appeals
Indiana Professional Licensing Agency and Indiana State Board of Dentistry v. Irfan A. Atcha, D.D.S.
49A02-1504-MI-197
Miscellaneous. Affirms in part and reverses in part the trial court’s finding that three dental advertising regulations are unconstitutional. The state properly restricted Dr. Atcha’s false and misleading claims implying he had a particular dental specialty and could provide better materials or superior service than other dentists. But the state may not compel a dentist to list on his advertisements every dentist in his practice. Remands for the board to reassess the penalty in light of this decision.
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Opinions Jan. 19, 2016

January 19, 2016
Indiana Court of Appeals
Cary R. Coleman v. State of Indiana
47A01-1506-IF-659
Infraction. Reverses speeding infraction, finding the trial court erred in concluding that the altered speed limit established by Lawrence County Ordinance 5-2-1 was effective in the absence of signage giving motorists notice of the altered speed limit.
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Opinions Jan. 15, 2016

January 15, 2016
Indiana Court of Appeals
Debra R. Sorrells v. Karen Reid-Renner, M.D.
53A01-1506-CT-534
Civil tort. Reverses summary judgment in favor of Dr. Reid-Renner on Sorrell’s medical malpractice complaint. Finds Sorrells met her burden to survive summary judgment on the issue of causation as a doctor’s expert testimony is sufficient to demonstrate a genuine issue of material fact.
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Opinions Jan. 14, 2016

January 14, 2016
Indiana Court of Appeals
David R. Neal v. Mark Sevier and the Indiana Department of Correction (mem. dec.)
52A02-1410-SC-735
Small claims. Affirms judgment in favor of Department of Correction.
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Opinions Jan. 13, 2016

January 13, 2016
Indiana Court of Appeals
Ashlee A. Trammel v. Jeffery S. Trammel (mem. dec.)
92A04-1507-DR-933
Domestic relation. Affirms denial of petition for mother to relocate children to North Carolina and award of parenting time to her according to the Indiana Parenting Time Guidelines. Reverses order that mother pay father $1,500 in attorney fees. Chief Judge Vaidik concurs in part and dissents in part with separate opinion.
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Opinions Jan. 12, 2016

January 12, 2016
Indiana Court of Appeals
Michael G. Hays v. Shanna Hays
62A04-1501-DR-33
Domestic relation. Reverses a court order that declared a Wyoming court order on father’s child support arrearage null and void. Vacates a trial court order precluding either party from taking the dependent exemption on their income taxes and remands for proceedings.
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Opinions Jan. 11, 2016

January 11, 2016
Indiana Court of Appeals
John W. Kimbrough, III v. State of Indiana (mem. dec.)
45A05-1506-PC-687
Post-conviction. Affirms denial of Kimbrough’s petition for post-conviction relief.
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Opinions Jan. 8, 2016

January 8, 2016
Indiana Court of Appeals
In the Matter of Ordinance #2013-09, as amended, the South and West Area Annexation Ordinance, et al. v. The City of Logansport, Indiana, acting by and through Ted Franklin, et al. (mem. dec.)
09A05-1504-PL-170
Civil plenary. Affirms order that annexation take place. Disagrees with remonstrators’ arguments that: the judgment is clearly erroneous because the ordinance does not adequately describe the annexation territory’s boundaries; the city of Logansport did not present sufficient evidence regarding the requisite contiguity of its boundaries with those of the annexation territory; the city did not present sufficient evidence that the annexation territory is needed and can be used for its development in the reasonably near future; the city’s fiscal plan is inadequate; and the remonstrators established that the annexation will have a significant financial impact on residents or landowners.
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Opinions Jan. 7, 2016

January 7, 2016
The following opinions were posted after IL deadline Wednesday:
Indiana Supreme Court
R.E. v. M.S.

49S05-1601-PO-6
Protective order.Grants R.E.’s transfer for the purpose of substituting her initials for her name in the Indiana Supreme Court opinion. R.E. had asked for the Court of Appeals to redact her full name from its decision and only identify her by her initials. Summarily affirms the COA’s decision in all other respects, which upheld the issuance of a protective order against R.E.
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Opinions Jan. 6, 2016

January 6, 2016
Indiana Court of Appeals
Anthony Fisher v. Charles Nightingale (mem. dec.)
64A04-1502-SC-83
Small claim. Reverses dismissal of Fisher’s complaint for failure to prosecute. By foreclosing any alternative avenue for Fisher, an inmate, to maintain his claim, the small claims court denied his constitutional right to prosecute his claim.

 
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Opinions Jan. 5, 2016

January 5, 2016
7th Circuit Court of Appeals
Tracy Williams v. Brandon Brooks, et al.
15-1763
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge Jane Magnus-Stinson.
Civil. Affirms summary judgment in favor of the law enforcement defendants on Williams’ lawsuit alleging false arrest, excessive force and failure to protect in violation of the Fourth Amendment. The district court correctly determined that it was not bound by the state court’s findings in Williams’ criminal case for resisting law enforcement. In addition, the arresting officer had probable cause to conduct the traffic stop, so he could arrest Williams without violating the Fourth Amendment even if Williams was not resisting law enforcement.
 
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Opinions Dec. 31, 2015

December 31, 2015
Indiana Court of Appeals
Nathan Polson v. State of Indiana
55A01-1504-CR-135
Criminal. Affirms conviction of Level 5 felony carrying a handgun without a license, rejecting Polson’s argument on appeal that the trial court abused its discretion because he claims the gun was seized by police in violation of the Fourth Amendment of the Constitution.
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Opinions Dec. 30, 2015

December 30, 2015
Indiana Court of Appeals
Charles S. Whitham v. State of Indiana

39A01-1504-CR-134
Criminal.  Affirms Whitham’s conviction of Class A felony attempted murder but sua sponte reverses his remaining convictions of Class B felony aggravated battery, Class B felony battery, Class C felony battery and Class D felony strangulation because each of these were a lesser-included offense to his conviction for attempted murder. Remands for the trial court to vacate these offenses.
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Opinions Dec. 29, 2015

December 29, 2015
Indiana Court of Appeals
John Barker and Specialty Limos, LLC v. Jason Price
24A02-1506-PL-626
Civil plenary. Reverses in part and affirms in part summary judgment in favor of Price in a contract dispute concerning the sale of a van. The trial court did not err when it concluded Price delivered a valid certificate of title even though the title was not in his name. Reverses summary judgment on the issue of whether a discrepancy in the model year of the van created a material issue. On remand, the court will consider not only the $2,000 deposit agreement but also extrinsic evidence to determine whether the model year of the van was material to their agreement.     
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Opinions Dec. 28, 2015

December 28, 2015
Indiana Court of Appeals
Douglas L. Krasnoff v. The Education Resources Institute
49A04-1501-CC-3
Civil collection. On rehearing, reaffirms original opinion that affirmed judgment the trial court in favor of The Education Resources Institute. Clarifies Krasnoff’s liability may be repaid to TERI Loan Holdings as the post-bankruptcy successor in interest and that any additional claims seeking a second judgment on a promissory note would be barred by the doctrine of res judicata.  

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Opinions Dec. 23, 2015

December 23, 2015
Indiana Court of Appeals
Raymond Kerr v. City of South Bend
71A03-1502-CT-49
Civil tort. Affirms in part and reverses in part summary judgment for the city on Kerr’s complaint alleging that noxious gases from its sewer lines had been forced into his home. Finds Kerr’s claims are barred by the statute of limitations insofar as they relate to injury to his health. A portion of his claims may proceed insofar as they relate to damage to his property. Remands for further proceedings.
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Opinions Dec. 22, 2015

December 22, 2015
Indiana Supreme Court
Randy L. Thornton v. State of Indiana, Ind. Dept. of Corr., Marion Co., Indiana, City of Indianapolis, Matthew Pietrzak, Stephanie Buttz, Eric Lee, and Dianna Johnson
49S02-1512-PL-709
Civil plenary. Grants transfer and reverses the dismissal of Thorton’s Section 1983 claim against the defendants. Remands for further proceedings. The trial court erred when it determined Thorton’s complaint did not state a claim for relief under 42 U.S.C. 1983 against the individually named probation officers. Justices Dickson and Massa dissent without opinion.
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Opinions Dec. 21, 2015

December 21, 2015
7th Circuit Court of Appeals
Frederick T. Garner v. United States of America
13-3506, 15-3661
U.S. District Court, Southern District of Indiana, Indianapolis Division. Judge Larry J. McKinney.
Civil/Criminal. Vacates new criminal sentence and remands to the district court for resentencing. Because of the misunderstanding that arose after Garner tried to appeal from the district court’s comments indicating the court saw no merit in his ineffective-counsel argument, Garner did not receive the full resentencing to which he was entitled.
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Opinions Dec. 18, 2015

December 18, 2015
7th Circuit Court of Appeals
Kevin B. McCarthy, et al. and Langsenkamp Family Apostolate, et al. v. Patricia Ann Fuller, et al.
14-3308, 15-1839
U.S. District Court, Southern District of Indiana, Indianapolis Division. Judge William T. Lawrence.
Civil. Affirms judgment in favor of plaintiffs on their claims against Fuller and Paul Hartman, including defamation. Reverses injunction put in place against Fuller and Hartman enjoining them from keeping up a blog or making certain statements regarding the plaintiffs. The injunction in this case is so broad it threatens to silence Fuller and Hartman completely. Remands for the district court to decide whether to issue a new injunction, one consistent with the criticisms outlined by the appellate court. Judge Sykes concurs with separate opinion.
 
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Opinions Dec. 17, 2015

December 17, 2015
Indiana Supreme Court
The following opinion was issued after IL deadline Wednesday.
AM General LLC v. James A. Armour
71S03-1507-PL-407
Civil plenary. Affirms trial court order in favor or Armour, awarding him the remaining portion of his long-term incentive plan payments. Holds that the promissory note AM General provided to Armour as compensation under the plan after he retired did not satisfy the requirement of “payment” under the disputed employment contract. As a matter of law, payment under the contract requires the benefit to be paid in cash or a cash equivalent.
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Opinions Dec. 16, 2015

December 16, 2015
Indiana Supreme Court
The following Indiana Supreme Court opinion was posted after IL deadline Tuesday:
Jeffrey Hewitt v. Westfield Washington School Corporation, et al.
29S04-1506-PL-377
Civil plenary. Affirms summary judgment for the school corporation on Hewitt’s lawsuit after he was terminated as principal of an elementary school for being involved in a sexual relationship with a teacher, one of his subordinates. In a case of first impression, holds that the teacher’s termination statute, I.C. 20-28-7.5-1 et seq., does not apply to termination of an administrator when his underlying teaching contract is not being terminated. Holds that the provisions in the form teacher’s contract that make reference to an opportunity for hearing and a just cause determination also apply only to the termination of an administrator’s underlying teaching contract.
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Opinions Dec. 15, 2015

December 15, 2015
Opinions Dec. 15, 2015
7th Circuit Court of Appeals

The following opinion was posted yesterday after IL deadline:
Indiana Petroleum Marketers and Convenience Store Association, et al. v. David Cook, in his official capacity as Chairman of the Indiana Alcohol and Tobacco Commmission
14-2559
Civil. Affirms summary judgment for Indiana. Finds convenience stores, grocery stores and gas stations did not meet their burden to show that the state law limiting the sale of cold beer violates the Equal Protection Clause.
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Opinions Dec. 14, 2015

December 14, 2015
Indiana Court of Appeals
F. John Rogers, as Personal Representative of Paul Michalik, Deceased, and R. David Boyer, Trustee of the Bankruptcy Estate of Jerry Lee Chambers v. Angela Martin and Brian Paul Brothers
02A05-1506-CT-520
Civil tort. Reverses trial court orders granting Angela Martin’s motion to strike and motion for summary judgment. The question of whether Martin is liable under the Dram Shop Act for furnishing alcohol to an intoxicated person, who later died after attending a party at the house she shared with Brian Paul Brothers, is a factual issue to be resolved at trial. Finds Martin as the host of a party had a duty to exercise reasonable care and render aid after she saw Paul Michalik unconscious after drinking and being involved in a fight, and questions of fact remain as to whether she breached that duty.
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Opinions Dec. 11, 2015

December 11, 2015
Indiana Court of Appeals
Wayne Patton v. Jessica Patton

17A04-1503-DR-137
Domestic relation. Affirms denial of father’s motion for modification of visitation, finding the trial court struck a balance that addresses the concerns of all, while still providing father with opportunities for more rewarding parenting time with W.P. immediately and in the future. Reverses portion denying his modification of child support, finding the emancipation of daughter Ja. P. was a substantial and continuing change to justify modification. Remands for modification of support obligation to become $136.42 per week.
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Opinions Dec. 10, 2015

December 10, 2015
Indiana Court of Appeals
Ronald L. Eckelbarger v. State of Indiana
90A02-1503-CR-188
Criminal. Affirms convictions of three counts of Class B felony dealing in methamphetamine and one count of Class D felony possession of chemical reagents or precursors with intent to manufacture a controlled substance. Eckelbarger’s convictions do not violate double jeopardy, the trial court did not abuse its discretion by ordering consecutive sentences, and his 32-year sentence is not inappropriate. Judge Riley dissents in part.
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  1. Indianapolis employers harassment among minorities AFRICAN Americans needs to be discussed the metro Indianapolis area is horrible when it comes to harassing African American employees especially in the local healthcare facilities. Racially profiling in the workplace is an major issue. Please make it better because I'm many civil rights leaders would come here and justify that Indiana is a state the WORKS only applies to Caucasian Americans especially in Hamilton county. Indiana targets African Americans in the workplace so when governor pence is trying to convince people to vote for him this would be awesome publicity for the Presidency Elections.

  2. Wishing Mary Willis only God's best, and superhuman strength, as she attempts to right a ship that too often strays far off course. May she never suffer this personal affect, as some do who attempt to change a broken system: https://www.youtube.com/watch?v=QojajMsd2nE

  3. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  4. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  5. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

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