Opinions

Opinions May 14, 2015

May 14, 2015
Indiana Supreme Court
The Board of Commissioners of the County of Jefferson v. Teton Corporation, Innovative Roofing Solutions, Inc., Gutapfel Roofing, Inc., and Daniel L. Gutapfel
72S04-1410-CT-642
Civil tort. Affirms summary judgment in favor of the contractors on the county’s subrogation claim to recover damages caused to the courthouse outside the scope of the renovation work. The plain meaning of the contract defines the scope of the AIA contract waiver based on the extent and source of coverage, not the nature of the property damaged. Agrees with the majority of jurisdictions that have applied this plain meaning to bar recovery for all damages covered by the same property insurance policy used to cover construction-related damages – commonly referred to as the “any insurance” approach. Because contractors have shown that the property owner’s insurance covered all damages, the subrogation waiver applies to bar the property owner’s claim.
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Opinions May 13, 2015

May 13, 2015
Indiana Supreme Court
Daniel Lee Pierce v. State of Indiana
78S05-1407-CR-460
Criminal. Affirms Pierce’s convictions for molesting his three young granddaughters. Finds his abuse of the girls in his care was sufficiently connected, so he is not entitled to new and separate trials. Remands for the purpose of resentencing on one count of Class A felony child molesting because the trial court erred by suspending six years of Pierce’s 30-year sentence for that count. Justices Robert Rucker and Brent Dickson concur in a separate opinion.
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Opinions May 12, 2015

May 12, 2015
7th Circuit Court of Appeals
United States of America v. Michael A. Knoll and Dax G. Shephard; Appeal of: Bob Henson
14-3027
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge Tanya Walton Pratt.
Criminal. Affirms summary judgment in favor of the government on Henson’s claim he had a legal right, title or interest in the Indianapolis or Fort Wayne properties forfeited to the government after Outlaw members Knoll and Shephard pleaded guilty to racketeering charges. But Henson did not present evidence showing he had a legal right, title or interest, and his statement indicated his interest did not begin until after the raid occurred in 2012.
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Opinions May 11, 2015

May 11, 2015
Indiana Court of Appeals
Mary K. Davis v. State of Indiana
20A03-1411-PC-408
Post conviction. Reverses denial of petition for post-conviction relief. Orders Davis immediately released pending resolution of this appeal. The post-conviction court’s findings and conclusions were contrary to law. The state’s notice of violation was filed on the day Davis’ probation ended such that there was no period of probation to be tolled, which means the trial court could not continue her terms of probation pursuant to Ind. Code § 35-38-2-3(c).
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Opinions May 8, 2015

May 8, 2015
Indiana Court of Appeals
Jay R. Thompson v. State of Indiana
31A01-1408-PC-350
Post conviction. Affirms grant of the state’s motion to dismiss Thompson’s post-conviction relief petition pursuant to the doctrine of laches. The state was prejudiced by his 22-year delay in prosecuting his PCR petition.
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Opinions May 7, 2015

May 7, 2015
Jonathan Grott, Sr. v. State of Indiana
64A04-1408-CR-395
Criminal. Affirms conviction of Class D felony auto theft. There is sufficient evidence to sustain the conviction, which stems from Grott's failure to return a rental car on a specific date.
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Opinions May 5, 2015

May 5, 2015
7th Circuit Court of Appeals
United States of America v. Christopher Boultinghouse
14-2764
Chief Judge Richard Young, U.S. District Court for the Southern District of Indiana, Evansville Division
Criminal. Affirms revocation of Boultinghouse’s supervised release. Finds Boultinghouse knowingly and intelligently made his decision to waive his right to counsel. Vacates sentence and remands for resentencing. Rules the District Court erred by not explaining the reasons behind its decision to impose a 24-month term of imprisonment.
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Opinions May 4, 2015

May 4, 2015
7th Circuit Court of Appeals
Bruce Carneil Webster v. Charles A. Daniels
14-1049
Judge William T. Lawrence, District Court for the Southern District of Indiana, Terre Haute Division.
Criminal. In a 6-5 decision, En banc review reverses 7th Circuit panel judgment that new evidence can never satisfy the habeas corpus standard of 28 U.S.C. § 2255(e). Remands for proceedings allowing Webster to present new evidence that may demonstrate categorical and constitutional ineligibility for the death penalty. Circuit Judge Frank Easterbrook dissented, arguing Webster’s new evidence did not meet the “clear and convincing” language required for relief. Easterbrook was joined in dissent by Circuit Judges William J. Bauer, Michael S. Kanne, Diane S. Sykes and John Tinder.
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Opinions April 30, 2015

April 30, 2015
Indiana Court of Appeals
Bruce Angelo Evans v. State of Indiana
48A02-1407-CR-496
Criminal. Affirms conviction of Class B felony dealing in a narcotic drug and pleading to being a habitual substance offender. Evans waived his challenge regarding the instruction on jury unanimity by failing to object to the jury instruction or offer one of his own, and any error does not rise to the level of fundamental error. Affirms admission into evidence a large amount of cash found on Evans when he was searched by law enforcement officers after the controlled drug buy.
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Opinions April 29, 2015

April 29, 2015
 Indiana Supreme Court
James Bogner v. Teresa Bogner
45S04-1501-DR-23
Domestic relation. Affirms modification of child support that deviated from what was found under the child support guidelines of $59 a week paid by the father to $105 per week paid by the father, in addition to order that mother could claim the child each year on her taxes. The trial court did not err in determining that given the parents’ circumstances, the guideline amount was unjust and unreasonable. Finds father waived his challenge to the form of the summary proceeding when he failed to make a contemporaneous objection to that procedure. 
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Opinions April 28, 2015

April 28, 2015

Indiana Court of Appeals
Dawn Warrick and Nathan Parrish v. Steve and Mitzi Stewart
92A03-1407-CC-257
Civil collection. Affirms grant of Steve Stewart’s motion to set aside the jury’s verdict and orders a new trial on his negligence claim against the Parrishes. The trial court did not abuse its discretion when it weighed the evidence presented regarding Stewart’s speed and concluding he was not speeding. There was also ample evidence represented that the Warricks negligently failed to restrain the dog that Stewart hit, which caused his accident.

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Opinions April 27, 2015

April 27, 2015
Indiana Court of Appeals
Adegoke Adetokunbo aka Robert Adesanoye, and Grace Itaniyi v. State of Indiana
49A02-1407-CR-511
Criminal. Affirms Adetokunbo’s convictions of Class A misdemeanor resisting law enforcement and Class B misdemeanor battery, and affirms Itaniyi’s convictions of Class A misdemeanor resisting law enforcement and Class B misdemeanor disorderly conduct. Reverses Itaniyi’s conviction of Class B misdemeanor battery based on insufficient evidence and remands with instructions to vacate that conviction.
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Opinions April 24, 2015

April 24, 2015
Tax. Affirms the Indiana Department of Local Government Finance did not err in denying the Clark County Board of Commissioners' request to increase the county's Cumulative Capital Development Fund tax rate for the 2012 budget year. The DLGF's consideration of the board's purpose for requesting an increase to the CCDF's tax rate was proper, and neither I.C. 6-1.1-41 nor 36-9-14.5-2 authorize an increase to the CCDF tax rate for the purposes Clark County intended.
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Opinions April 23, 2015

April 23, 2015
J.B. v. State of Indiana 
49A02-1409-JV-688
Juvenile. Affirms determination that J.B. committed what would be Class A misdemeanor dangerous possession of a firearm if committed by an adult. There were no federal or state constitutional violations by admitting evidence obtained during J.B.’s encounter with a police officer.  
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Opinions April 22, 2015

April 22, 2015
Indiana Court of Appeals
William I. Babchuk, M.D., P.C., d/b/a Babchuk Imaging, P.C., and William I. Babchuk v. Indiana University Health Tipton Hospital, Inc., d/b/a Indiana University Health Tipton Hospital
80A04-1409-PL-447
Civil plenary. Reverses order dismissing Babchuk’s complaint of breach of contract for failure to prosecute under Trial Rule 41(E).  While the trial court would have had discretion to dismiss Babchuk’s case for failure to prosecute had a timely motion been filed, the hospital did not file its motion to dismiss before Babchuk had resumed prosecution of his case. Remands for further proceedings.
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Opinions April 21, 2015

April 21, 2015
7th Circuit Court of Appeals
United States of America v. Kenneth Sandidge
14-1492
U.S. District Court, Northern District of Indiana, Hammond Division, Judge Rudy Lozano.
Criminal. Affirms four-level enhancement for conviction of felon in possession of a firearm because it was in connection with another felony, and denial of three-level reduction for accepting responsibility. Remands to the trial court to vacate conditions of supervised release, which in accord with recent 7th Circuit holdings must be imposed to fit the particular circumstances of the defendant being sentenced.
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Opinions April 20, 2015

April 20, 2015
Indiana Court of Appeals
Stephen F. Smith v. Foegley Landscape, Inc.
71A03-1405-SC-169
Small Claims. Affirms judgment in favor of Foegley Landscape but reverses $1,500 award for attorney fees. Finds the small claims court did not have any documentation to properly evaluate the reasonableness of the fees. Remands to the small claims court to hold a hearing and determine the reasonable attorney fees.
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Opinions April 17, 2015

April 17, 2015
Indiana Court of Appeals
Angelique Lockett and Lanetra Lockett v. Planned Parenthood of Indiana, Inc., and Cathy McGee
45A05-1407-CT-340
Civil tort. Affirms summary judgment in favor of Planned Parenthood on a malpractice claim, but remands to the trial court to correct the order of judgment for defendants to show that McGee, who provided identification to a 17-year-old to obtain an abortion without parental consent, is not dismissed as a defendant.
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Opinions April 16, 2015

April 16, 2015
Indiana Court of Appeals
James Satterfield v. State of Indiana
49A02-1409-CR-659
Criminal. Reverses denial of motion to let bail following Satterfield’s arrest and charge for murder. Although Statterfield forfeited his right to appeal by not filing the notice of appeal within 30 days of the trial court order, the COA concluded his appeal deserves a determination on the merits. Remands for new hearing so Satterfield can present evidence of self-defense.
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Opinions April 15, 2015

April 15, 2015
Joseph E. Corcoran v. Ron Neal, superintendent
13-1318
U.S. District Court, Northern District of Indiana, South Bend Division, Judge Jon E. DeGuilio.
Civil. Affirms denial of writ for federal habeas relief from death penalty. The Indiana Supreme Court held that the trial judge did not rely on nonstatutory aggravating factors, and that determination was not unreasonable. The Supreme Court also reasonably determined that the trial judge considered all proffered evidence in mitigation.
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Opinions April 14, 2015

April 14, 2015
Indiana Court of Appeals
Think Tank Software Development Corp., d/b/a Think Tank Networking Tech. Group and Think Tank Info. Systems v. Chester, Inc., Mike Heinhold, John Mario, Joel Parker, Thomas Guelinas, et al.
64A03-1404-PL-134
Civil plenary. Affirms directed verdict in favor of Chester Inc. and other defendants on Think Tank’s claim for misappropriation of trade secrets. Also finds the trial court correctly determined that Think Tank’s non-solicitation claim was barred.
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Opinions April 13, 2015

April 13, 2015
Indiana Court of Appeals
Israel Munoz v. Jerome Woroszylo
79A02-1409-CT-679
Civil tort. Affirms denial of Munoz’s motion to dismiss Woroszylo’s lawsuit stemming from a car accident filed in Tippecanoe County after the case was dismissed from Illinois federal court for lack of personal jurisdiction. There is no intent that Worosyzlo filed his suit in Illinois with intent to abuse judicial process or create undue delay and his decision to file in Indiana state court is allowed under the Journey’s Account Statute.
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Opinions April 10, 2015

April 10, 2015
Indiana Tax Court
ESPN Productions, Inc. v. Indiana Department of State Revenue
49T10-1312-TA-76
Tax. Grants in part and denies in part ESPN’s request to place certain documents within the judicial record under seal. Holds that the tax returns, production services agreement, and cable television license agreements submitted by the company as designated evidence in support of its motion for summary judgment are protected from public disclosure under both Access to Public Records Act and Administrative Rule 9(G)(2). That protection does not extend to ESPN’s supplement to protest.
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Opinions April 9, 2015

April 9, 2015
Indiana Supreme Court
Cohen & Malad, LLP v. John P. Daly, Jr., Golitko & Daly, P.C., and Golitko Legal Group, P.C.
29S02-1504-PL-165
Civil plenary. Reverses denial of quantum meruit relief to Cohen & Malad for part of the contingent fees earned in cases that where first handled by C&M attorneys and later by Daly and his firm after he left C&M.
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Opinions April 8, 2015

April 8, 2015
7th Circuit Court of Appeals
United States of America v. Mark Bozovich
14-1435
U.S. District Court, Northern District of Indiana, Hammond Division, Judge Rudy Lozano.
Criminal. Affirms conviction of conspiracy to distribute heroin and 235-month prison sentence. The District judge made a clear credibility finding and otherwise carefully scrutinized the drug quantity evidence. Finds that by testifying on direct about his heroin purchasing habits and motives for his purchases, Bozovich opened himself up for cross-examination as to those topics.
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  1. On a related note, I offered the ICLU my cases against the BLE repeatedly, and sought their amici aid repeatedly as well. Crickets. Usually not even a response. I am guessing they do not do allegations of anti-Christian bias? No matter how glaring? I have posted on other links the amicus brief that did get filed (search this ezine, e.g., Kansas attorney), read the Thomas More Society brief to note what the ACLU ran from like vampires from garlic. An Examiner pledged to advance diversity and inclusion came right out on the record and demanded that I choose Man's law or God's law. I wonder, had I been asked to swear off Allah ... what result then, ICLU? Had I been found of bad character and fitness for advocating sexual deviance, what result then ICLU? Had I been lifetime banned for posting left of center statements denigrating the US Constitution, what result ICLU? Hey, we all know don't we? Rather Biased.

  2. It was mentioned in the article that there have been numerous CLE events to train attorneys on e-filing. I would like someone to provide a list of those events, because I have not seen any such events in east central Indiana, and since Hamilton County is one of the counties where e-filing is mandatory, one would expect some instruction in this area. Come on, people, give some instruction, not just applause!

  3. This law is troubling in two respects: First, why wasn't the law reviewed "with the intention of getting all the facts surrounding the legislation and its actual impact on the marketplace" BEFORE it was passed and signed? Seems a bit backwards to me (even acknowledging that this is the Indiana state legislature we're talking about. Second, what is it with the laws in this state that seem to create artificial monopolies in various industries? Besides this one, the other law that comes to mind is the legislation that governed the granting of licenses to firms that wanted to set up craft distilleries. The licensing was limited to only those entities that were already in the craft beer brewing business. Republicans in this state talk a big game when it comes to being "business friendly". They're friendly alright . . . to certain businesses.

  4. Gretchen, Asia, Roberto, Tonia, Shannon, Cheri, Nicholas, Sondra, Carey, Laura ... my heart breaks for you, reaching out in a forum in which you are ignored by a professional suffering through both compassion fatigue and the love of filthy lucre. Most if not all of you seek a warm blooded Hoosier attorney unafraid to take on the government and plead that government officials have acted unconstitutionally to try to save a family and/or rescue children in need and/or press individual rights against the Leviathan state. I know an attorney from Kansas who has taken such cases across the country, arguing before half of the federal courts of appeal and presenting cases to the US S.Ct. numerous times seeking cert. Unfortunately, due to his zeal for the constitutional rights of peasants and willingness to confront powerful government bureaucrats seemingly violating the same ... he was denied character and fitness certification to join the Indiana bar, even after he was cleared to sit for, and passed, both the bar exam and ethics exam. And was even admitted to the Indiana federal bar! NOW KNOW THIS .... you will face headwinds and difficulties in locating a zealously motivated Hoosier attorney to face off against powerful government agents who violate the constitution, for those who do so tend to end up as marginalized as Paul Odgen, who was driven from the profession. So beware, many are mere expensive lapdogs, the kind of breed who will gladly take a large retainer, but then fail to press against the status quo and powers that be when told to heel to. It is a common belief among some in Indiana that those attorneys who truly fight the power and rigorously confront corruption often end up, actually or metaphorically, in real life or at least as to their careers, as dead as the late, great Gary Welch. All of that said, I wish you the very best in finding a Hoosier attorney with a fighting spirit to press your rights as far as you can, for you do have rights against government actors, no matter what said actors may tell you otherwise. Attorneys outside the elitist camp are often better fighters that those owing the powers that be for their salaries, corner offices and end of year bonuses. So do not be afraid to retain a green horn or unconnected lawyer, many of them are fine men and woman who are yet untainted by the "unique" Hoosier system.

  5. I am not the John below. He is a journalist and talk show host who knows me through my years working in Kansas government. I did no ask John to post the note below ...

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