Opinions

Opinions Oct. 31, 2013

October 31, 2013
7th Circuit Court of Appeals
Mark Suesz, individually and on behalf of a class v. Med-1 Solutions LLC
13-1821
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge William T. Lawrence.
Civil. Affirms dismissal of Suesz’s complaint that Med-1 Solutions violated the Fair Debt Collection Practices Act after obtaining a favorable judgment against him in Marion County Small Claims Court in Pike Township because he neither lived nor signed the contract in that township. Small claim courts are not judicial districts for purposes of the FDCPA. Judge Posner dissents.
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Opinions Oct. 30, 2013

October 30, 2013
Indiana Court of Appeals
Eric Danner v. State of Indiana (NFP)
71A03-1304-PC-146
Post conviction. Affirms denial of petition for post-conviction relief.
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Opinions Oct. 29, 2013

October 29, 2013
Shawn Telligman v. Review Board of the Indiana Department of Workforce Development and Indiana Department of Workforce Development Unemployment Insurance Claims Adjudication
93A02-1304-EX-303
Agency action. Affirms ruling in favor of the IDWD’s claim that Telligman failed to disclose or falsified information to IDWD in order to receive unemployment benefits. The ALJ and review board did not err in finding that Telligman knowingly failed to disclose or falsified facts that would disqualify him from receiving benefits, reduce his benefits, or render him ineligible for benefits or extended benefits, and in finding him liable to repay IDWD the benefit overpayment amounts together with applicable penalties and interest. The board did not abuse its discretion in denying his request to submit additional evidence.
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Opinions Oct. 28, 2013

October 28, 2013
Indiana Court of Appeals
Chaunsey L. Fox v. State of Indiana
71A04-1304-CR-187
Criminal. Affirms felony murder conviction. The trial court did not abuse its discretion by denying Fox’s motion to dismiss and allowing the jury to determine the issue of credibility and answer the question of who was telling the truth.
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Opinions Oct. 25, 2013

October 25, 2013
Indiana Court of Appeals
Michael A. Lane v. State of Indiana
82A05-1212-CR-640
Criminal. Affirms convictions of murder, Class B felony conspiracy to commit dealing in a schedule II controlled substance, and two counts of Class C felony criminal recklessness. Holds an instruction on reckless homicide was not warranted and that brief testimonial hearsay evidence admitted was harmless beyond a reasonable doubt.
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Opinions Oct. 24, 2013

October 24, 2013
Indiana Court of Appeals
Gregory Dickens v. State of Indiana
71A03-1304-PC-101
Post conviction. Affirms denial of petition for post-conviction relief seeking new trial for murder of a police officer. Dickens was not entitled to a new trial in light of either newly discovered evidence or an alleged Brady violation. He also did not receive ineffective assistance of trial counsel.
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Opinions Oct. 23, 2013

October 23, 2013
Indiana Court of Appeals
Phillip Griffin v. State of Indiana
49A02-1212-CR-964
Criminal. Reverses conviction of Class A misdemeanor resisting law enforcement as the police officer lacked reasonable suspicion to detain Griffin for the purpose of investigating a possible crime. Affirms conviction of Class A misdemeanor battering an officer while being placed under arrest because there is sufficient evidence Griffin was not acting in self-defense. Also reverses order to perform community services and remands to address the question of payment of costs. Judge Mathias concurs in separate opinion; Judge Bailey concurs in part and dissents in part.
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Opinions Oct. 22, 2013

October 22, 2013
7th Circuit Court of Appeals
Billy Julian v. Sam Hanna, et. al.
1:11-CV-01536
Criminal. Reverses District Court grant of summary judgment to defendant parties in a malicious prosecution case and remands for further proceedings, holding that Billy Julian’s claim was improperly dismissed as untimely. The panel held that the two-year window for the claim did not begin until November 2010, when charges against him were dismissed, and therefore filing of the claim in July 2011 was timely.
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Opinions Oct. 18, 2013

October 18, 2013
Indiana Court of Appeals
Floyd Weddle v. State of Indiana
73A01-1209-CR-452
Criminal. Affirms on rehearing that convictions for possession of methamphetamine and manufacturing methamphetamine were not double jeopardy, and finding that the jury could have reasonably concluded that Weddle was in possession of methamphetamine and was in the process of manufacturing an additional amount of the drug.
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Opinions Oct. 17, 2013

October 17, 2013
Indiana Court of Appeals
Timothy L. Hyser v. State of Indiana
20A05-1301-CR-37
Criminal. Reverses convictions of Class A felony and Class C felony child molesting. The exclusion of the evidence Hyser wished to present deprived him of a meaningful opportunity to present a complete defense. The state is not barred from retrying Hyser.
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Opinions Oct. 16, 2013

October 16, 2013
Jennifer Nelson
Indiana Court of Appeals
Steven R. Ott v. State of Indiana
20A05-1306-CR-270
Criminal.  Affirms denial of Ott’s motion to correct error following the trial
court’s order denying his “Verified Motion to Convert Class D Felony Conviction to a Class A Misdemeanor Pursuant to I.C. 35-50-2-7(c).”
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Opinions Oct. 15, 2013

October 15, 2013
Indiana Court of Appeals
Judith (Lund) Pherson v. Michael Lund
52A04-1304-DR-180
Domestic relation. Affirms denial of Pherson’s motion to correct error, which challenged a post-dissolution order in response to a motion by Lund for clarification of a pension-fund provision of a property settlement agreement incorporated into a divorce decree. The pension contributions in the 18 ½ years since the dissolution were after-acquired property beyond the scope of the settlement agreement to divide.
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Opinions Oct. 14, 2013

October 14, 2013
7th Circuit Court of Appeals
United States of America v. Richard Brown
12-3313
U.S. District Court, Southern District of Indiana, Evansville Division. Chief Judge Richard L. Young.
Criminal. Affirms 60-month total sentence following guilty plea to one count each of wire fraud, mail fraud and tax fraud. The sentencing beyond the advisory guidelines sentencing range is reasonable when considered in light of the court’s oral pronouncement of the sentence.
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Opinions Oct. 11, 2013

October 11, 2013
Indiana Court of Appeals
Medtronic, Inc., v. Lori A. Malander, Individually and as Personal Representative of the Estate of David M. Malander, Sr., Deceased and Kathleen Malander
49A02-1211-CT-925
Civil tort. Affirms denial of Medtronic’s motion for summary judgment in an action against it by Lori Malander, individually and as the personal representative of the Estate of David Malander, deceased, and Kathleen Malander. The Medical Device Amendments to the Federal Food, Drug, and Cosmetics Act does not preempt the claim against Medtronic and genuine issues of material fact exist regarding whether Medtronic assumed a duty to David Malander.

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Opinions Oct. 10, 2013

October 10, 2013
Indiana Court of Appeals
In the Matter of the Termination of the Parent-Child Relationship of E.T., D.T., L.T., and Y.T., Minor Children: M.T., v. Indiana Dept. of Child Services and Lake County Court Appointed Special Advocate
45A03-1302-JT-49
Juvenile. Affirms termination of parental rights. The mother has not demonstrated that the trial court clearly erred when it determined that continuation of the parent-child relationship with the children poses a threat to their well-being. Nor has she shown that termination is not in the best interest of the children or that the court erred when it determined that adoption is a satisfactory plan following the terminations.
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Opinions Oct. 9, 2013

October 9, 2013
Indiana Court of Appeals
Specialty Foods of Indiana, Inc., d/b/a Jersey Mike's Subs v. City of South Bend and Century Center Board of Managers
71A05-1302-MI-95
Miscellaneous. Affirms order denying Specialty Foods of Indiana’s complaint for declaratory judgment as to its right to continue operating its business in the college Football Hall of Fame in South Bend under a use management and operations agreement. The force majeure provision of the agreement to be exclusive provider of food and beverages for the College Football Hall of Fame in South Bend is applicable to excuse the Century Center Board of Manager’s nonperformance of its obligations under the agreement because the closure of the Hall of Fame constitutes a “reason not within the reasonable control of Century Center.”
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Opinions Oct. 8, 2013

October 8, 2013
Indiana Supreme Court
In the Matter of: Thomas M. Dixon
71S00-1104-DI-196
Discipline. The majority concludes in a per curiam ruling that statements made in support of a motion for change of judge did not violate Indiana Professional Conduct Rule 8.2(a) considering the entirety of the statements. Finds that the statements were relevant to, and required for, the relief sought. Justice Robert Rucker dissents, agreeing with the Disciplinary Commission hearing officer that the comments went beyond legal argument, became personal and therefore violated the rule.
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Opinions Oct. 7, 2013

October 7, 2013

Opinions, Oct. 7, 2013

Indiana Court of Appeals

The Estate of Richard A. Mayer, and Spangler, Jennings & Dougherty v. Lax, Inc., and David Lasco
37A03-1207-PL-323
Civil plenary. Affirms in part, reverses in part and remands. Reverses denial of summary judgment to the Estate and Spangler Jennings on claims for negligent supervision and/or retention, tortious interference with a business relationship, and tortious interference with a contract, and directs that summary judgment be entered in the estate’s and Spangler Jennings’s favor on those claims. Reverses denial of summary judgment to Spangler Jennings on the defamation claim and directs that summary judgment be entered in its favor on that claim. Reverses the denial of summary judgment to the estate regarding Lax and Lasco’s seeking punitive damages against it and direct that summary judgment be entered in favor of the estate on that claim. Affirms the granting of summary judgment in the estate’s favor on the defamation and malicious prosecution claims. Affirms denial of summary judgment on the malicious prosecution claim against Spangler Jennings and the denial of summary judgment on the abuse of process claim to both the estate and Spangler Jennings. Affirms the denial of summary judgment in favor of Spangler Jennings on punitive damages.

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Opinions Oct. 4, 2013

October 4, 2013
Opinions Oct. 4, 2013

Indiana Court of Appeals
Dexter Berry v. State of Indiana (NFP)

49A04-1301-CR-34
Post conviction. Remands for recalculation of pretrial credit time applied against an executed 10-year sentence for conviction of Class B felony burglary.
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Opinions, Oct. 3, 2013

October 3, 2013
Opinions, Oct. 3, 2013

Indiana Tax Court

Orange County Assessor v. James E. Stout
49T10-1112-TA-94
Property tax. Affirms the final determination of the Indiana Board of Tax Review that the Orange County Assessor failed the meet the burden of proving that Stout’s land assessment was proper. Finds although the Indiana Board applied a 2011 statute to a 2010 appeal, the 2011 law was not new but a clarification of the original 2009 statute which shifted the burden to the assessor. Also rules the assessor failed to provide any evidence demonstrating that Stout was not using his 8.12 acre property for an agriculture purpose.
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Opinions Oct. 1, 2013

October 1, 2013
Indiana Court of Appeals
Christina Atkins, and Kyla Atkins, by her parent and next friend Christina Atkins v. Veolia Water Indianapolis, LLC
49A02-1302-CT-181
Civil tort. Affirms denial of Atkins’ motion for leave to file a belated appeal under Indiana Trial Rule 72(E). Finds in order for remedy under the trial rule, counsel has to first establish either the court did not send a copy of the order, ruling or judgment or sent a copy to the wrong address. Lack of notice is the prerequisite before any relief can be granted. Atkins’ counsel received notice of the court’s judgment in favor of Veolia but misfiled it. Therefore, Atkins had received the notice and cannot obtain relief under Rule 72(E).
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Opinions Sept. 30, 2013

September 30, 2013
Opinions, Sept. 30, 2013

Indiana Court of Appeals
Jeffrey Archer v. State of Indiana

49A05-1209-CR-448
Criminal. Affirms Class A felony conviction of child molestation, rejecting arguments that the trial court’s statement about the victim’s competency was an impermissible vouching statement and that the court improperly allowed vouching statements by multiple witnesses. The court’s denial of Archer’s request to present evidence of the victim’s post-allegation demeanor also was proper, as were jury instructions and the effectiveness of Archer’s trial counsel.
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Opinions Sept. 26, 2013

September 26, 2013
Indiana Supreme Court
M & M Investment Group, LLC v. Ahlemeyer Farms, Inc. and Monroe Bank
03S04-1211-CC-645
Civil collection. Reverses the trial court and remands. Rules the requirement in Indiana Code 6-1.1-24-3(b)  that a mortgage holder must request a copy of a notice that a parcel of property is eligible for tax sale does not violate the 14th Amendment’s due process clause. The Supreme Court upheld 20 years of precedent in finding the statute is constitutional.
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Opinions Sept. 25, 2013

September 25, 2013
Indiana Court of Appeals
Steven Harper and Rose Harper as Co-Personal Representatives of the Estate of Steven Harper, Deceased v. Gerry Hippensteel, M.D.
42A04-1302-MI-95
Miscellaneous/medical malpractice. Affirms trial court grant of summary judgment in favor of Dr. Gerry Hippensteel, concluding that he did not owe a duty to Steven Harper Jr. on the basis of a Collaborative Practice Agreement the doctor signed with a nurse practitioner who provided care. Because Hippensteel took no affirmative action with regard to Harper, he is entitled to summary judgment because no doctor-patient relationship existed or was imposed by the agreement.
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Opinions Sept. 24, 2013

September 24, 2013
Opinions  Sept 24, 2013

Indiana Court of Appeals

Jerome Milian v. State of Indiana
79A02-1302-CR-197
Criminal. Affirms trial court denial of Jerome Milian’s pro se motion to withdraw his plea of guilty to Class A felony dealing cocaine. The court concluded that Milian, who was represented at his pro se hearing by stand-by counsel, received multiple advisements and admonishments from the trial court regarding his rights, and in particular, his right to representation by counsel. Milian failed to meet his burden of proving that he was subjected to manifest injustice.
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  1. I just wanted to point out that Congressman Jim Sensenbrenner, Senator Feinstein, former Senate majority leader Bill Frist, and former attorney general John Ashcroft are responsible for this rubbish. We need to keep a eye on these corrupt, arrogant, and incompetent fools.

  2. Well I guess our politicians have decided to give these idiot federal prosecutors unlimited power. Now if I guy bounces a fifty-dollar check, the U.S. attorney can intentionally wait for twenty-five years or so and have the check swabbed for DNA and file charges. These power hungry federal prosecutors now have unlimited power to mess with people. we can thank Wisconsin's Jim Sensenbrenner and Diane Feinstein, John Achcroft and Bill Frist for this one. Way to go, idiots.

  3. I wonder if the USSR had electronic voting machines that changed the ballot after it was cast? Oh well, at least we have a free media serving as vicious watchdog and exposing all of the rot in the system! (Insert rimshot)

  4. Jose, you are assuming those in power do not wish to be totalitarian. My experience has convinced me otherwise. Constitutionalists are nearly as rare as hens teeth among the powerbrokers "managing" us for The Glorious State. Oh, and your point is dead on, el correcta mundo. Keep the Founders’ (1791 & 1851) vision alive, my friend, even if most all others, and especially the ruling junta, chase only power and money (i.e. mammon)

  5. Hypocrisy in high places, absolute immunity handed out like Halloween treats (it is the stuff of which tyranny is made) and the belief that government agents are above the constitutions and cannot be held responsible for mere citizen is killing, perhaps has killed, The Republic. And yet those same power drunk statists just reel on down the hallway toward bureaucratic fascism.

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