Opinions

Opinions Aug. 13, 2015

August 13, 2015
7th Circuit Court of Appeals
Wayne Kubsch v. Ron Neal, superintendent, Indiana State Prison
14-1898
Appeal from the U.S. District Court, Northern District of Indiana, South Bend Division
Chief Judge Philip Simon
Criminal. Affirms denial of Kubsch’s habeas corpus petition. Majority rules the exclusion of testimony by neighbors which could have exonerated Kubsch was hearsay and, therefore, not admissible. In a dissent, Chief Judge Diane Wood argues the testimony should have been admitted under Chambers v. Mississippi, 410 U.S. 284 (1973).
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Opinions Aug. 12, 2015

August 12, 2015
Indiana Court of Appeals
Fifty Six LLC, individually and, alternatively, in the name of the State of Indiana on relation of Fifty Six LLC v. The Metropolitan Development Commission of Marion County
49A05-1407-PL-323
Civil plenary.  Reverses and remands denial of landowner Fifty Six LLC’s motion to correct error and granting of the development commission’s cross motion for summary judgment regarding the adoption of the Millersville Plan to guide development of a northeast-side Indianapolis community. Fifty Six had standing to challenge the Millersville plan and the MDC did not comply with required notice and hearing provisions before the hearing on the Millersville Plan’s adoption. Remanded for proceedings.
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Opinions Aug. 11, 2015

August 11, 2015
Indiana Court of Appeals
LHO Indianapolis One Lessee, LLC v. Esther Bowman, Individually and on Behalf of Other Similarly Situated Individuals
49A02-1411-CT-811
Civil tort. Reverses the trial court’s certification of a class defined by Bowman. Finds members of the class did not meet the requirement of Indiana Trial Rule 23(B)(3) by showing their illnesses were caused by eating the same contaminated food. Remands with the options of either redefining the class under Indiana Trial Rule23(C)(4)(a) or continuing under T.R. 23(B)(3) with respect to the hotel’s general liability only. 
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Opinions Aug. 10, 2015

August 10, 2015
7th Circuit Court of Appeals
United States of America v. Dennis R. Williams and Leslie Ann Williams and Indiana Dept. of Revenue and Clark County Indiana
13-2359
Appeal from U.S. District Court, Southern District of Indiana, New Albany Division
Chief Judge Richard Young
Civil. Affirms order the property belonging to the Williamses be sold and the receipts divided among the Internal Revenue Service, the state of Indiana and Clark County. Finds the U.S. secretary of the treasury did authorize the proceedings and the attorney general did direct the action to commence. Holds the Williamses did receive notification of the amount of taxes they owed. Rules the state and county claims belong in the proceeding. Concludes the District Court’s decision is sensible and not an abuse of discretion.
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Opinions Aug. 7, 2015

August 7, 2015
7th Circuit Court of Appeals
The following opinion was posted after IL deadline Thursday
United States of America v. Jeffrey P. Taylor
14-3790
Appeal from the U.S. District Court, Northern District of Indiana, Hammond Division
Judge Rudy Lozano
Criminal. Vacates sentence for Taylor convicted in 2007 of attempted transferring obscene materials to minors and remands to the District Court to remove a special condition of probation barring Taylor from viewing otherwise legal adult pornography. Taylor must make all Internet-accessible devices available for inspection without reasonable suspicion. A ban on contact with minors is overly broad. Judge David Hamilton concurred in part but dissented on lifting the pornography ban, finding no abuse of discretion. Judge Frank Easterbrook concurred separately to cite jurisdictional conflicts.
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Opinions Aug. 6, 2015

August 6, 2015
7th Circuit Court of Appeals
United States of America v. Sandra McGuire
14-3545
Appeal from the U.S. District Court, Northern District of Indiana, Hammond Division
Judge James Moody
Criminal. Dismisses appeal over the denial of McGuire’s motion to withdraw a guilty plea to money laundering for depositing $2,200 in drug proceeds into her checking account. McGuire’s plea agreement included a waiver of appeal, and this applies to her motion to withdraw the plea after it was accepted but before she was sentenced.
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Opinions Aug. 5, 2015

August 5, 2015
Indiana Court of Appeals
BGC Entertainment, Inc. d/b/a Brad's Gold Club and 3551 Lafayette Road Corp. d/b/a Brad's Gold Club v. Jerry Coleman Buchanan, by His Father and Guardian, Odell Buchanan
49A05-1408-CT-373
Civil tort. Affirms denial of summary judgment in favor of Brad’s Gold Club parties in a negligence action resulting from a pedestrian’s injuries caused by a club waitress’s crash on her way home from work after she had been furnished alcohol. There are issues of fact concerning whether the club provided the waitress alcohol with knowledge she was visibly intoxicated and whether it breached its duty to supervise her. Buchanan’s cross-motion for summary judgment also was properly denied because evidence establishes that the waitress had no knowledge of her own level of intoxication to be imputed to the club.
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Opinions Aug. 4, 2015

August 4, 2015
Indiana Supreme Court
David J. Markey v. Estate of Frances S. Markey, Deceased; Stephen L. Routson, Personal Representative Under the Last Will and Testament of Frances S. Markey, Deceased et al
89S05-1412-ES-749
Estate. Reverses summary judgment in favor of the defendants. Agrees with David Markey that his claim for breach of contract to make and not revoke mutual wills is a claim governed by the probate code. Remands to determine if Markey was a “creditor” who was “known or reasonably ascertainable” and therefore timely filed his claim.  
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Opinions Aug. 3, 2015

August 3, 2015
7th Circuit Court of Appeals
Louise Milan v. Billy Bolin, in his individual capacity as Evansville Police Department Chief, et al.
15-1207
Appeal from the U.S. District Court, Southern District of Indiana, Evansville Division
Judge William Lawrence
Civil. Affirms denial of summary judgment in favor of the Evansville police defendants on Louise Milan’s claim of excessive use of force resulting from a SWAT team raid on her house initiated with the use of flash-bang grenades. Denial of the defendants’ motion for summary judgment is reasonable considering the use of flash bangs, the skimpy basis for the search and its prematurity, and the failure to conduct a more extensive investigation.
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Opinions July 31, 2015

July 31, 2015
Indiana Supreme Court
The following opinion was posted after IL deadline Thursday
In Re the Visitation of L-A.D.W., R.W. v. M.D. and W.D.
82S01-1507-DR-452
Domestic. Affirms trial court grant of grandparent visitation, finding visitation in the child’s best interests and that the trial court did not abuse its discretion in setting a schedule it deemed occasional and temporary. Justice Steven David wrote the majority opinion joined by Justices Brent Dickson and Mark Massa. Chief Justice Loretta Rush concurred, but wrote separately to caution that a reliance upon deference to the trial court insufficiently protects a parent’s constitutional right to guide a child’s upbringing, but in this case, the visitation order did not unduly infringe on father’s parental rights. Justice Robert Rucker joined Rush’s concurring opinion.
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Opinions July 30, 2015

July 30, 2015
Indiana Supreme Court
Wellpoint, Inc. (F/K/A Anthem, Inc.) and Anthem Insurance Companies, Inc. v. National Union Fire Insurance Company of Pittsburgh, PA, AIG Europe (U.K.) Limited, et al
49S05-1404-PL-244
Civil plenary. Grants petition for rehearing to modify the Supreme Court’s previous opinion. Finds its reversal should be clarified to grant summary judgment in favor of Anthem but only on the issues raised in Continental’s motion of summary judgment. Holds Continental did not waive its unasserted defenses.
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Opinions July 29, 2015

July 29, 2015
7th Circuit Court of Appeals
United States of America v. Robert L. Lee
14-2010
Appeal from the U.S. District Court for the Northern District of Indiana, South Bend Division.
Judge Robert L. Miller
Affirms revocation of supervised release for violation of terms due to commission of a crime. Rejects Lee’s argument that due process under the Fifth Amendment and Federal Rule of Criminal Procedure 32.1 requires citation to a specific statute to provide written notice of the alleged violation.
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Opinions July 28, 2015

July 28, 2015
7th Circuit Court of Appeals
Grant E. Bentrud v. Bowman Heintz Boscia & Vician, P.C.
14-2384
Appeal from the U.S. District Court, Southern District of Indiana, Indianapolis Division
Judge William Lawrence.
Civil. Affirms grant of summary judgment in favor of Bowman Heintz. Finds Bowman Heintz did not violate the Federal Debt Collections Practices Act for filing a second motion for summary judgment after the 30-day deadline to initiate arbitration had passed.
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Opinions July 27, 2015

July 27, 2015
7th Circuit Court of Appeals
The following opinion was issued after IL deadline Friday
Katherine Cerajeski, Guardian for Walter Cerajeski v. Greg Zoeller, Attorney General of the State of Indiana, et al.
15-1313
Appeal from the United States District Court for the Southern District of Indiana.
Judge Jane Magnus-Stinson
Civil. Reverses dismissal of Cerajeski’s claim as moot, holding that she is entitled to legal fees because the suit led to a change in state law that enabled her to obtain damages sought in the litigation. Remands for a determination of reasonable legal fees, expressing a tentative view that the amount sought for the prior appeal –  $258,462.50 for 375.75 hours – is excessive.
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Opinions July 24, 2015

July 24, 2015
Indiana Court of Appeals
Antyon Buford v. State of Indiana
20A05-1408-CR-392
Criminal. Reverses convictions of Class A felony dealing cocaine, Class B felony unlawful possession of a firearm by a serious violent felon, and Class D felony maintaining a common nuisance. A warrant on which the search of Buford’s residence was premised was not supported by probable cause. Remands for proceedings.
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Opinions July 23, 2015

July 23, 2015
7th  Circuit Court of Appeals
The following opinion was issued after IL deadline Wednesday.
United States of America v. Joseph B. Miller
14-2779
Appeal from the United States District Court for the Northern District of Indiana.
Judge James T. Moody.
Criminal. Affirms bank robbery conviction, holding that neither an FBI agent’s alleged misstatements nor defense counsel’s purported errors in failing to suppress certain evidence affected the outcome of the trial.
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Opinions July 22, 2015

July 22, 2015
7th Circuit Court of Appeals
The following opinions were issued after IL deadline Tuesday.
United States of America v. Michael B. McClellan
14-2449
Appeal from the U.S. District Court for the Northern District of Indiana, Hammond Division; Chief Judge Philip P. Simon.
Criminal. Affirms convictions of harboring an illegal alien, three counts of mail fraud, and one count of engaging in a monetary transaction involving criminally derived property. The evidence presented to the jury was sufficient for the convictions, and jury instructions concerning the harboring count did not constitute plain error.
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Opinions July 21, 2015

July 21, 2015
Indiana Supreme Court
In the Matter of: Steven J. Ouellette
02S00-1502-DI-107
Attorney discipline. Disbars Steven J. Ouellette for converting $8,725 in client funds and failing to cooperate with the disciplinary process. Ouellette, who currently was suspended indefinitely in a separate disciplinary matter, violated Rules of Professional Conduct 1.15(a), 8.1(b), 8.4(b) and 8.4(c). Respectively, those rules violations are for failing to hold client property in trust; failing to respond to disciplinary authorities; committing a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness; and conduct involving dishonesty, fraud, deceit or misrepresentation.
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Opinions July 20, 2015

July 20, 2015
Indiana Court of Appeals
Charles R. Ferguson v. The Estate of Lera V. Ferguson
34A02-1411-ES-793
Estate. Reverses on interlocutory appeal an order that Charles R. Ferguson post a bond in excess of $1.1 million, representing the amount of his claim against the estate plus administrative costs in order to stay the sale of the family farm. Finding the trial court abused its discretion in ordering a bond in the amount of a claim against the estate plus costs, the panel remands with instructions that bond be posted at $60,000, the amount of administrative costs.
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Opinions July 17, 2015

July 17, 2015
Indiana Tax Court
Richard D. Foster v. Indiana Department of State Revenue (mem. dec.)
49T10-1504-TA-17
Tax. Grants Indiana Department of State Revenue’s motion to dismiss. Foster appealed the revenue department’s seizure of his tax refunds and vehicles after he pled guilty to possession of marijuana. However, the Tax Court concluded it lacked subject matter jurisdiction since Foster had not taken his appeal from a final determination of the revenue department.
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Opinions July 16, 2015

July 16, 2015
Indiana Tax Court
Indianapolis Public Transportation Corporation v. Department of Local Government Finance
49T10-1203-TA-19
Tax. Denies Department of Local Government Finance’s motion for judgment on the pleadings. Indianapolis Public Transportation Corp. (IndyGo) has standing to appeal the DLGF’s adjustment of its budget because under the facts of the case an “appeal” could not have contemplated adjustments made to the budget that are at issue in the case.
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Opinions July 15, 2015

July 15, 2015
Indiana Court of Appeals
Robert Seal v. State of Indiana
48A02-1410-CR-775
Criminal. Affirms convictions of two counts of Class A felony child molesting; two counts of Class B felony incest; and one count of Class B sexual misconduct with a minor. Finds police’s failure to capture the audio on the recordings of the victims’ interviews does not violate Seal’s due process rights. Rules trial court did not abuse its discretion in instructing the jury that time is not an element of the offenses. Concludes the continuous crime doctrine does not apply.
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3 things to know about lawyer services disclaimers

July 15, 2015
James Bell, Jessica Whelan
Prospective clients routinely and increasingly turn to the Internet to find a lawyer. Therefore, the information you, as a lawyer with a Web presence, put out there is important to the success of your law practice.
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Opinions July 14, 2015

July 14, 2015
Indiana Court of Appeals
Parkview Hospital, Inc. v. John J. Wernert, in his official capacity as Secretary of the Indiana Family and Social Services Administration, and The Methodist Hospitals, Inc.
02A03-1408-PL-296
Civil plenary. Affirms trial court ruling in favor of Indiana Family and Social Service Administration’s denial of Medicaid disproportionate share payments to Parkview Hospital. The decision of the FSSA secretary was not arbitrary, capricious, or unsupported by substantial evidence, and there was no contract or agreement of material terms and conditions regarding disproportionate share hospital payments supporting a forfeiture claim.
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Opinions July 13, 2015

July 13, 2015
7th Circuit Court of Appeals
United States of America v. Joshua R. Mackin
14-3602
U.S. District Court, Northern District of Indiana, Fort Wayne Division;
Judge Theresa Springmann
Criminal. Vacates conviction of being a felon in possession of a firearm and remands for further proceedings. Finds the government’s failure to produce the correct and complete continuity slip until mid-trial violated Federal Rule of Criminal Procedure 16. Agrees with defense that the incomplete slip presented during discovery was the basis of the defendant’s trial strategy and his decision not to seek a plea agreement.
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  1. A sad end to a prolific gadfly. Indiana has suffered a great loss in the journalistic realm.

  2. Good riddance to this dangerous activist judge

  3. What is the one thing the Hoosier legal status quo hates more than a whistleblower? A lawyer whistleblower taking on the system man to man. That must never be rewarded, must always, always, always be punished, lest the whole rotten tree be felled.

  4. I want to post this to keep this tread alive and hope more of David's former clients might come forward. In my case, this coward of a man represented me from June 2014 for a couple of months before I fired him. I knew something was wrong when he blatantly lied about what he had advised me in my contentious and unfortunate divorce trial. His impact on the proceedings cast a very long shadow and continues to impact me after a lengthy 19 month divorce. I would join a class action suit.

  5. The dispute in LB Indiana regarding lake front property rights is typical of most beach communities along our Great Lakes. Simply put, communication to non owners when visiting the lakefront would be beneficial. The Great Lakes are designated navigational waters (including shorelines). The high-water mark signifies the area one is able to navigate. This means you can walk, run, skip, etc. along the shores. You can't however loiter, camp, sunbath in front of someones property. Informational signs may be helpful to owners and visitors. Our Great Lakes are a treasure that should be enjoyed by all. PS We should all be concerned that the Long Beach, Indiana community is on septic systems.

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