Opinions

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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Opinions July 10, 2015

July 10, 2015
Indiana Supreme Court
In the Matter of: Tenneil E. Selner
71S00-1402-DI-96
Attorney discipline. Suspends Tenneil E. Selner for three years without automatic reinstatement for her federal conviction of distribution of pseudoephedrine to participants in a methamphetamine ring. Justices approved the conditional agreement for discipline by a 4-1 vote, with Justice Dickson dissenting, believing Selner’s conduct demonstrated unfitness.
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Opinions July 9, 2015

July 9, 2015
7th Circuit Court of Appeals
The following opinion was posted Wednesday after IL deadline
Carlene M. Craig, et al. v. FedEx Ground Package System, Inc.
10-3115
Appeal from U.S. District Court, Northern District of Indiana, South Bend Division;
Judge Robert L. Miller, Jr.
Civil. Reverses multi-district litigation court’s grant of summary judgment to FedEx and remands with instructions to enter summary judgment in favor of plaintiffs, the Kansas drivers. The drivers are employees of FedEx rather than independent contractors under the Kansas Wage Payment Act, the court ruled. Proceedings may include remand to the Kansas District Court for a determination of damages.
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Opinions July 8, 2015

July 8, 2015
7th Circuit Court of Appeals
Choice Hotels International, Inc. v. Anuj Grover, Arjun Grover and Dharam Punwani

14-3294
Appeal from the U.S. District Court, Northern District of Indiana, Hammond Division;
Judge Joseph S. Van Bokkelen
Civil. Affirms denial of motion for relief from judgment. Finds the investors cannot have the judgment set aside because their attorney failed to protect their interests. Instead they should seek remedy through a malpractice action.
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Opinions July 7, 2015

July 7, 2015
Indiana Court of Appeals
Bryan A. Cox v. State of Indiana
27A02-1412-CR-599
Criminal. Affirms 15-year aggregate executed sentence for Class B felony dealing cocaine and adjudication as a habitual offender. The doctrine of amelioration does not apply to Cox’s habitual offender sentence enhancement. Cox argued that he should have been sentenced under a more lenient amended habitual offender statute effective July 1, 2014, but his crime occurred before this, and the Legislature clearly did not intend for the doctrine of amelioration to apply to the amended statute.
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Opinions July 6, 2015

July 6, 2015
7th Circuit Court of Appeals
Corre Opportunities Fund, LP, et al., v. Emmis Communications Corp.
14-1647
Civil. Affirms ruling against Corre on a complaint that Emmis owed some $34 million in unpaid dividends to owners of preferred stock in the company. Under Indiana’s unique law allowing corporations to vote their shares, Emmis had authority to vote shares that the preferred stock owners claimed were outstanding.  
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Opinions July 2, 2015

July 2, 2015
7th Circuit Court of Appeals
The following opinions were issued after IL deadline Wednesday.

U.S.A. v. Willie J. Harris
14-1846
U.S. District Court, Northern District of Indiana, Hammond Division, Judge Philip P. Simon
Criminal. Affirms convictions of fraud, conspiracy to commit fraud with identification documents, production and trafficking in counterfeit devices, and aggravated identity theft. Finds a notebook taken from Harris’ truck was admissible at trial and the evidence was sufficient to support his convictions. Also finds the District Court did not err in applying sentencing enhancements.
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Opinions 7/1/15

July 1, 2015

7th Circuit Court of Appeals
The following opinion was issued after IL deadline Tuesday.
David Lawson v. Sun Microsystems, Inc.
13-1502 and 13-1503
U.S. District Court, Southern District of Indiana, Indianapolis Division, Chief Judge Richard Young
Civil. Reverses jury award to Lawson for $1.5 million and remands with instructions to enter judgment for Sun Microsystems. Finds the employee compensation plan that was instituted when Sun acquired StorageTek Inc., is unambiguous and Lawson is not entitled to the jury award of $1.5 million.

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Opinions June 30, 2015

June 30, 2015
7th Circuit Court of Appeals
Richard Bell v. Cameron Taylor
14-3099
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge Tanya Walton Pratt.
Civil. Dismisses interlocutory appeal for lack of jurisdiction and remands to the District Court for resolution of outstanding issues. The 7th Circuit had no jurisdiction because Bell’s suit was still alive even though partial summary judgment had been granted.
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Opinions: 6/29/2015

June 29, 2015
Indiana Supreme Court
Larry D. Russell, Jr. v. State of Indiana
84S01-1409-CR-583
Criminal. Affirms 10-year sentence for conviction of five counts of Class C felony neglect of a dependent and two counts of Class C felony criminal confinement. Despite an erroneous application of a particular section of Indiana Code on a perceived statutory cap on sentencing, the plea agreement is enforceable because Russell received the benefit of the bargain and there is no compelling reason to set aside the conviction, the majority held. Chief Justice Loretta Rush concurred in result only. Justice Mark Massa dissented, finding that the trial court’s acceptance of a plea agreement based on an error of law amounted to an abuse of discretion.

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Opinions June 26, 2015

June 26, 2015
7th Circuit Court of Appeals
Renato DeBartolo v. United States of America
14-3579
U.S. District Court, Northern District of Indiana, South Bend Division, Judge Robert L. Miller.
Reverses denial of a petition for relief from a removal order resulting in the deportation of DeBartolo to Italy. The panel held that the failure of DeBartolo’s attorney to inform him that pleading guilty to a drug charge could result in deportation proceedings was ineffective assistance of counsel.
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Opinions June 25, 2015

June 25, 2015
7th Circuit Court of Appeals
United States of America v. Pascal Sylla
14-2813
U.S. District Court, Southern District of Indiana, Indianapolis Division. Judge Sarah Evans Barker.
Criminal. Affirms 2013 conviction of attempted bank robbery stemming from an attempted robbery in 2003. Sylla’s DNA was matched to the crime scene in 2010, thus making his conviction not outside the statute of limitations.
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Opinions June 24, 2015

June 24, 2015
Indiana Supreme Court
In the Matter of: Bradley D. Hamilton
49S00-1412-DI-752
Discipline. Disbars Hamilton for abandoning his law practice and clients, stealing their money, and fleeing to Australia. Finds he violated eight rules of Professional Conduct.
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Opinions June 23, 2015

June 23, 2015
The following 7th Circuit Court of Appeals opinion was posted after IL deadline:
John W. Perotti v. Diane Quinones and Billie Kelsheimer
14-229
U.S. District Court, Southern District of Indiana, Terre Haute Division. Judge Jane Magnus-Stinson.
Civil. Affirms District Court’s denial of Perotti’s petition of habeas corpus ad testificandum and arrangement for him to participate in his alleged retaliation trial by video conferencing. The decision did not disadvantage him, and the judge did everything she could to make sure that Perotti saw as much of the trial proceeding and its participants as was possible.
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Opinions June 22, 2105

June 22, 2015
Indiana Court of Appeals
K.K. v. State of Indiana
49A02-1410-JV-687
Juvenile. Affirms adjudication as delinquent for having committed the offense of dangerous possession of a firearm, a Class A misdemeanor if committed by an adult. The odor of burnt marijuana emanating from a vehicle K.K. was a passenger in provided probable cause for officers to arrest the car’s three occupants, such that the loaded handgun found during the search of K.K. was properly admitted into evidence.
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Opinions June 19, 2015

June 19, 2015
The following Indiana Tax Court opinion was posted after IL deadline Thursday:
Muir Woods, Inc. v. Joseph P. O'Connor, Assessor of Marion County
49T10-1302-TA-38
Tax. Affirms dismissal by the Indiana Board of Tax Review of Muir Woods Inc.’s Petitions for correction of an error (Forms 133) because the forms’ alleged errors are not correctable under that appeal procedure. Finds that the Indiana Board acted within the scope of its authority and that Muir Woods did not raise a claim cognizable using the Form 133 appeal procedure.
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Opinions June 18, 2015

June 18, 2015
Indiana Court of Appeals
I-465, LLC v. Metropolitan Board of Zoning Appeals Division II of Marion County, Indiana, Jeffrey R. Baumgarth and The Myers Y. Cooper Company
49A05-1409-PL-403
Civil plenary. Affirms decision by the Marion County Metropolitan Board of Zoning Appeals approving a request for a property-use variance by Jeffrey R. Baumgarth and Myers Y. Cooper Co. The BZA’s decision to grant the variance was based upon its determination that Myers Cooper had established the five elements required to justify a variance, and its decision was supported by adequate findings, which in turn were supported by the evidence, and therefore not clearly erroneous.
 
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  1. Indianapolis Bar Association President John Trimble and I are on the same page, but it is a very large page with plenty of room for others to join us. As my final Res Gestae article will express in more detail in a few days, the Great Recession hastened a fundamental and permanent sea change for the global legal service profession. Every state bar is facing the same existential questions that thrust the medical profession into national healthcare reform debates. The bench, bar, and law schools must comprehensively reconsider how we define the practice of law and what it means to access justice. If the three principals of the legal service profession do not recast the vision of their roles and responsibilities soon, the marketplace will dictate those roles and responsibilities without regard for the public interests that the legal profession professes to serve.

  2. I have met some highly placed bureaucrats who vehemently disagree, Mr. Smith. This is not your father's time in America. Some ideas are just too politically incorrect too allow spoken, says those who watch over us for the good of their concept of order.

  3. Lets talk about this without forgetting that Lawyers, too, have FREEDOM OF SPEECH AND ASSOCIATION

  4. Baer filed with the U.S. Court of Appeals Seventh Circuit on April 30 2015. When will this be decided? How many more appeals does this guy have? Unbelievable this is dragging on like this.

  5. They ruled there is no absolute right to keep a license, whether it be for a lifetime or a short period of time. So with that being said, this state taught me at the age of 15 how to obtain that license. I am actually doing something that I was taught to do, I'm not breaking the law breaking the rules and according to the Interstate Compact the National Interstate Compact...driving while suspended is a minor offense. So, do with that what you will..Indiana sucks when it comes to the driving laws, they really and truly need to reevaluate their priorities and honestly put the good of the community first... I mean, what's more important the pedophile drug dealer or wasting time and money to keep us off the streets?

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