Opinions

Opinions Oct. 15, 2014

October 15, 2014
7th Circuit Court of Appeals
Randy M. Swisher v. Porter County Sheriff’s Dept., et al.
13-3602
U.S. District Court, Northern District of Indiana, South Bend Division, Magistrate Judge Christopher A. Nuechterlein.
Civil. Reverses judgment in favor of the defendants on Swisher’s 42 U.S.C. 1983 complaint that he was denied medical care during his nine-month stint in jail. The magistrate judge, while fully crediting the plaintiff’s testimony at an evidentiary hearing, erred in dismissing Swisher’s suit for failure to exhaust administrative remedies.
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Opinions Oct. 14, 2014

October 14, 2014
Indiana Court of Appeals
Brandon Earthman v. State of Indiana (NFP)
49A04-1404-CR-147
Criminal. Affirms 12-year sentence for Class B felony robbery.
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Opinions Oct. 13, 2014

October 13, 2014
There are no opinions Monday because the courts are closed in observance of Columbus Day.
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Opinions Oct. 10, 2014

October 10, 2014
Indiana Court of Appeals
Susan A. Snyder v. Town of Yorktown, Delaware County Surveyor, Delaware County Drainage Board, Randall Miller & Associates, Inc., and Watson Excavating, Inc.
18A02-1405-CT-332
Civil tort. Reverses grant of the defendants’ motion to dismiss Snyder’s complaint regarding inverse condemnation because her complaint sufficiently states a claim for it. Affirms dismissal as it relates to her claim for trespass because the allegations in her complaint fail to establish any circumstances under which she would be entitled to relief for trespass. Remands for further proceedings.
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Opinions Oct. 9, 2014

October 9, 2014
Indiana Court of Appeals
Stacey D. Cox v. State of Indiana
29A05-1312-CR-637
Criminal. Affirms convictions of Class D felony involuntary manslaughter and Class B misdemeanor operating a child care home without a license. The state presented sufficient evidence that Cox operated a child care home under I.C. 12-17.2-5-28.6.
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Opinions Oct. 8, 2014

October 8, 2014
Indiana Court of Appeals
Rodney A. Richard v. State of Indiana
46A05-1312-CR-628
Criminal. Affirms Class A felony conviction of dealing in cocaine within 1,000 feet of a public park, but reverses Class A felony conviction of dealing in cocaine within 1,000 feet of a family housing complex. The state did not offer sufficient evidence to prove he committed dealing within 1,000 feet of a family housing complex. Remands for the trial court to enter a conviction as a Class B felony and resentence him on that count.
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Opinions Oct. 7, 2014

October 7, 2014
Indiana Supreme Court
Evansville Courier & Press and Rita Ward v. Vanderburgh County Health Department
82S04-1401-PL-49
Civil plenary. Reverses determination by trial court and finds death certificates which include the cause of death are public records. Holds a plain reading of the state statute denies public viewing of death information at the Indiana State Department of Health but gives private citizens access to death records at the local county health department. Remands for summary judgment in plaintiffs’ favor and to determine award of attorney fees.
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Opinions Oct. 6, 2014

October 6, 2014
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Opinions Oct. 3, 2014

October 3, 2014
Indiana Court of Appeals
Eve Carson v. Stacy Palombo
49A02-1312-PL-1052
Civil plenary. Affirms trial court grant of summary judgment in favor of Palombo on Carson’s claims of defamation per se, defamation per quod and invasion of privacy by false light based upon Palombo’s comments regarding a YouTube video Carson posted criticizing the investigation of her sister-in-law’s decades-old murder. The trial court did not abuse its discretion in denying Carson’s motion to amend her complaint to include facts she knew but omitted at the time her original complaint was filed to defeat a grant of summary judgment in Palombo’s favor. There is no genuine issue of material fact that Carson’s claimed damages were incurred as a consequence of alleged defamatory statements, and in the light of other videos Carson posted on YouTube, she was cast in essentially the same light as Palombo’s comment.
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Opinions Oct. 2, 2014

October 2, 2014
Indiana Court of Appeals
Robert Campbell v. State of Indiana
89A04-1312-CR-634
Criminal. Affirms on interlocutory appeal the order granting the state’s motion to withdraw from guilty plea. By refusing to testify at his co-defendant’s trial, Campbell failed to tender the consideration specifically contemplated in the plea agreement. Thus, it would deprive the state of its end of the bargain to sentence Campbell in accordance with a contract that he did not fully satisfy.
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Opinions Oct. 1, 2014

October 1, 2014
Indiana Supreme Court
Robert Corbin v. State of Indiana
75S03-1401-CR-13
Criminal. Affirms trial court denial of a motion to dismiss a charge of attempted child seduction and remands for further proceedings. Whether Corbin’s Facebook communications propositioning a 16-year-old student for sex constituted the required substantial step toward the crime is a question not ripe for dismissal on interlocutory appeal. Justices found the charges match the statutory elements sufficient to survive a motion to dismiss at this time.
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Opinions Sept. 30, 2014

September 30, 2014
Indiana Supreme Court
Gersh Zavodnik v. Irene Harper
49A04-1307-PL-316
Civil plenary. Denies transfer to Zavodink’s appeal of the dismissal of his appeal for failure to file a timely brief and appendix. Offers guidance to courts on how to deal with prolific, abusive litigants.
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Opinions Sept. 29, 2014

September 29, 2014
Indiana Court of Appeals
Bryan L. Good v. Wells Fargo Bank, NA.
20A03-1401-MF-14
Mortgage foreclosure. Reverses grant of partial summary judgment in favor of Wells Fargo and the subsequent judgment of foreclosure. The bank has not shown its status as holder of the promissory note signed by Good for purposes of the Uniform Commercial Code. Remands for further proceedings.
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Opinions Sept. 26, 2014

September 26, 2014
Indiana Court of Appeals
Shacare Terry v. Community Health Network, Inc.
49A04-1312-PL-630
Civil plenary.  Affirms dismissal of Terry’s claim of breach of duty against Community Hospital, but reverses dismissal of intentional infliction of emotional distress claim. The breach of duty claim is, in substance, a medical malpractice claim, so the court did not have jurisdiction because it had not been submitted to the medical review panel yet. The trial court had subject matter over Terry’s emotional distress claim.
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Opinions Sept. 25, 2014

September 25, 2014
The following Indiana Supreme Court opinion was posted after IL deadline Wednesday:
Scott Logan v. State of Indiana
20S05-1405-CR-339
Criminal. Reverses conviction of Class C felony child molesting and six-year sentence. Although the trial court technically complied with Criminal Rule 4(C), Logan’s 1,291-day delay between the filing of the charge and the beginning of his trial violated his constitutional right to a speedy trial. Orders Logan released from incarceration and remands for further proceedings.
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Opinions Sept. 24, 2014

September 24, 2014
Indiana Court of Appeals
Albert L. Hauck and Mark Wood v. City of Indianapolis
49A04-1403-PL-136
Civil plenary. Affirms summary judgment in favor of Indianapolis on Hauck’s and Wood’s complaint regarding the Indianapolis Metropolitan Police Department’s failure to promote them to captain. The word “endeavor” as used in the ordinance means to “attempt to,” and the plaintiffs failed to show the city did not maintain proportional representation of former Marion County Sheriff’s Department deputies and Indianapolis Police Department officers throughout the divisions and appointed ranks of IMPD as contemplated by the revised code.
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Opinions Sept. 23, 2014

September 23, 2014
Indiana Court of Appeals
The Branham Corporation v. Newland Resources, LLC; Samuel Sutphin; White River Funding Corp.; et al; Thomas N. Eckerle; Thomas N. Eckerle Prof. Corp. v. The Branham Corporation
06A05-1311-CT-572
Civil tort. Affirms the trial court’s summary judgment order in favor of the defendants. Reverses the order dismissing attorney Thomas Eckerle without prejudice and remands for entry of summary judgment in favor of Eckerle. Finds the trial court correctly determined the defendants were entitled to summary judgment because Branham filed its complaint for nonpayment of damages after the two-year statute of limitations had run.
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Opinions Sept. 22, 2014

September 22, 2014
Indiana Supreme Court
In the Matter of: Trezanay M. Atkins
49S00-1306-DI-435.
Attorney discipline. Suspends Atkins for two years without automatic reinstatement, finding she violated Indiana Rules of Professional Conduct 8.4(b), committing a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness; and 8.4(c), engaging in conduct involving dishonesty, fraud, deceit or misrepresentation.
 
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Opinions Sept. 19, 2014

September 19, 2014
Indiana Court of Appeals
City of Mitchell v. Randy Phelix
47A01-1402-PL-88
Civil plenary. Reverses denial of its complaint for a declaratory judgment related to former Mitchell city policeman Randy Phelix’s claim for medical expenses due to disabilities resulting from dismantling methamphetamine labs. The appeals court held that the trial court erred when it ruled that Phelix was entitled to have the city pay his medical bills under I.C. 36-8-4-5 despite the worker’s compensation carrier’s denial of his claim.
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Opinions Sept. 18, 2014

September 18, 2014
Indiana Supreme Court
State of Indiana v. Frank Greene
49S02-1403-PC-172
Post conviction. Reverses grant of post-conviction relief, which would have reduced Greene’s Class B felony criminal confinement conviction to a Class D felony. Greene did not receive ineffective assistance of trial or appellate counsel due to his attorneys’ failure to present allegedly controlling precedent from this court. Greene mischaracterizes the application of Long v. State.
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Opinions Sept. 17, 2014

September 17, 2014
Indiana Court of Appeals
Robert P. Benavides v. State of Indiana (NFP)
18A02-1405-PC-318
Post conviction. Affirms dismissal of petition for writ of state habeas corpus.
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Opinions Sept. 16, 2014

September 16, 2014
Indiana Court of Appeals
Willie Jenkins v. Mary Jenkins
49A02-1403-DR-132
Domestic relation. Reverses grant of Mary Jenkins’ motion to vacate a contempt hearing. It was not in the interests of justice for the trial court to ignore its rule of allowing 15 days to respond and granting her motion prior to allowing Willie Jenkins time for response. Remands for further proceedings.
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Opinions Sept. 15, 2014

September 15, 2014
Indiana Court of Appeals
Jeremiah Lee Collins v. State of Indiana (NFP)
21A01-1405-CR-192
Criminal.  Affirms revocation of probation.
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Opinions Sept. 12, 2014

September 12, 2014
Indiana Court of Appeals
In re the Marriage of Tina M. Harpenau v. Robin P. Harpenau
62A01-1401-DR-37
Domestic relation.  Affirms grant of father’s petition to modify, awarding him primary physical custody of the children and granting mother the same parenting time as father originally had, as well as that mother pay child support. The trial court did not abuse its discretion in modifying custody due to her proposed move or in modifying child support accordingly.
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Opinions Sept. 11, 2014

September 11, 2014
7th Circuit Court of Appeals
Securities and Exchange Commission v. First Choice Management Services Inc., et al; CRM Energy Partners and John W. Hannah v. Joseph D. Bradley, Receiver
14-1270, 14-2284
U.S. District Court, Northern District of Indiana, South Bend Division, Judge Robert L. Miller Jr.
Civil. Affirms denial of CRM’s motion to intervene in the sale of an oil and gas lease in order to compensate victims of fraud. Dismisses its appeal of the District Court’s approval of the sale. CRM waited too long to intervene in the action.
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  1. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  3. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  4. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  5. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

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