Opinions

Opinions Aug. 1, 2013

August 1, 2013
Luxury Townhomes, LLC/LP XXIV, LLC, et al. v. McKinley Properties, Inc. and Kenneth Polsinelli
49A05-1210-MF-514
Mortgage foreclosure. Affirms denial of Luxury’s motion to correct error. Rules that since the trial court already held a hearing, accepted the receiver’s final report and discharged the receiver, the doctrine of res judicata precluded Luxury from filing a separate motion against the receiver.
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Opinions July 31, 2013

July 31, 2013
7th Circuit Court of Appeals
Sikiru Adeyeye v. Heartland Sweeteners, LLC
12-3820
Civil/Religious discrimination. Reverses summary judgment in favor of Heartland and remands to the District Court for proceedings, holding that a material issue of fact exists as to whether Sikiru Adeyeye’s rights under Title VII were violated when he was fired after taking time off work to attend his father’s burial rights in Nigeria. 
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Opinions July 30, 2013

July 30, 2013
Indiana Court of Appeals
In Re the Adoption of: P.A.H., f/k/a P..V., Minor Child, B.D. and L.H.C., v. J.H.
79A02-1302-AD-183
Adoption. Reverses trial court’s order granting post-adoption visitation to P.H.’s biological uncle, J.H. Finds the lower court lacked authority to grant post-adoption visitation rights to J.H. since he is not within any statutory category of persons entitled to visitation rights.
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Opinions July 29, 2013

July 29, 2013
Indiana Court of Appeals
Robert L. Murray v. State of Indiana (NFP)
45A05-1205-PC-274
Post conviction. Affirms COA’s memorandum decision. Grants Murray’s petition for a rehearing to address the two omitted issues regarding false testimony. Concludes the testimony was not false and the court’s omitted reference to Murray’s final motion to amend his petition is immaterial and, therefore, not a basis for relief.
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Opinions July 26, 2013

July 26, 2013
Indiana Court of Appeals
Jermaine Marcel Nash v. State of Indiana (NFP)
45A05-1210-CR-553
Criminal. Reverses conviction of criminal confinement, a Class C felony, and remands case to the trial court to vacate the conviction and amend Nash’s sentence accordingly. Rules Nash’s convictions for attempted rape and criminal confinement violate the principles of double jeopardy.
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Opinions July 25, 2013

July 25, 2013
7th Circuit Court of Appeals
United States of America v. Jama Mire and Hassan Rafle
12-2792, 12-2793
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge William T. Lawrence.
Criminal. Affirms both men’s convictions of one count of conspiracy to possess with intent to distribute cathinone; affirms Mire’s additional convictions of knowingly using or maintaining a place for the purpose of distributing and using cathinone; and possession with intent to distribute a mixture or substance containing cathinone. Rejects claims that that their due process rights were violated because they were not given fair warning that the possession of “khat” may be illegal.
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Opinions July 23, 2013

July 23, 2013
Indiana Court of Appeals
Gared Holdings, LLC v. Best Bolt Products, Inc.
49A02-1210-PL-811
Civil plenary.  Affirms the trial court’s judgment on Gared’s claims of breach of contract and breach of the implied warranty of fitness for a particular purpose as those claims are supported by the evidence. The trial court erred in ruling that Best Bolt was not a merchant. Remands for the trial court to determine whether Best Bolt breached the implied warranty of merchantability, and if so, whether that alters the result of Best Bolt’s counterclaim. Chief Judge Robb concurs in separate opinion and dissents in part.
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Opinions July 22, 2013

July 22, 2013
Indiana Court of Appeals
Thomas Dexter v. State of Indiana
79A04-1212-CR-611
Criminal. Affirms finding by jury after remand that Dexter is a habitual offender and the sentence enhancement of 30 years on his conviction of Class A felony neglect of a dependent resulting in death. The certified transcript from Dexter’s guilty-plea and sentencing hearing is sufficient to prove one of his underlying felony convictions, and his habitual-offender retrial was not barred by res judicata.
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Opinions July 19, 2013

July 19, 2013
Indiana Court of Appeals
Kenneth Scholz v. Lorraine Kirk (NFP)
37A03-1211-PL-493
Civil plenary. Affirms the trial court’s determination of the amount of damages for the rental income for the farmland. Reverses award of prejudgment interest to Kirk.
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Opinions July 18, 2013

July 18, 2013
Indiana Supreme Court
In Re the Guardianship of A.J.A. and L.M.A., Minor Children; J.C. v. J.B. and S.B.
48S02-1305-GU-398
Guardianship. Holds the trial court correctly vacated its original order granting grandparent visitation. The Grandparent Visitation Statute does not provide a means by which the paternal grandmother in this case may seek visitation when her son has murdered the mother of her two grandchildren.
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Opinions July 16, 2013

July 16, 2013
7th Circuit Court of Appeals
Hoosier Environmental Council and Citizens for Appropriate Rural Roads v. United States Army Corps of Engineers and Indiana Department of Transportation
12-3187
Civil/agency action. Affirms the U.S. Court for the Southern District of Indiana’s grant of summary judgment in favor of the Corps of Engineers, holding that the Corps evaluated all of the wetland-protection factors required in its approval of a Clean Water Act permit to construct a section of Interstate 69 about 25 miles south of Bloomington.  

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Opinions July 15, 2013

July 15, 2013
Indiana Court of Appeals
Tuan Chu v. State of Indiana
49A04-1210-CR-495
Criminal. Affirms convictions for three counts of Class D felony evasion of income tax, three counts of Class D felony theft, and one county of Class D felony failure to remit or collect sales tax. Chu appealed on the grounds that the nonpayment penalty of $280,326.62 and his criminal convictions violated double jeopardy principles. The COA stated it was not convinced that the nonpayment penalties were punishments for double jeopardy purposes and it disagreed with Chu’s assertion that the imposition of the nonpayment penalties was conditioned on the commission of a crime.
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Opinions July 12, 2013

July 12, 2013
7th Circuit Court of Appeals
Miguel Gutierrez v. Michael R. Kermon
12-2934
Civil/wrongful arrest, excessive force. Dismisses Indianapolis Metropolitan Police Department officer Michael Kermon’s interlocutory appeal of a denial of summary judgment on the basis of qualified immunity from a wrongful arrest and excessive force lawsuit. The court held that it had no jurisdiction over the interlocutory appeal because Kermon’s argument was dependent on a disputed fact and the court will not reweigh evidence.
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Opinions July 11, 2013

July 11, 2013
7th Circuit Court of Appeals
United States of America v. Danny Harmon
12-1502
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge Jane E. Magnus-Stinson.
Criminal. Affirms convictions of marijuana conspiracy and related offenses and 360-month sentence. A trial continuance did not violate his Sixth Amendment right to a speedy trial and the disclosure of Harmon’s prior drug conviction did not deprive him of a fair trial. The court did not make a mistake in finding Harmon responsible for more than 10,000 kilograms of marijuana.
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Opinions July 10, 2013

July 10, 2013
Indiana Court of Appeals
Wesley Young v. State of Indiana (NFP)
49A02-1209-PC-753
Post conviction. Affirms denial of petition for post-conviction relief.
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Opinions July 9, 2013

July 9, 2013
7th Circuit Court of Appeals
Roger L. Peele v. Clifford Burch, individually and as Portage Police Department Chief, et al.
12-3562
U.S. District Court, Northern District of Indiana, Hammond Division, Magistrate Judge Paul R. Cherry.
Civil. Reverses summary judgment in favor of the city of Portgage and Portage Police Department chief and assistant chief on Peele’s lawsuit that he was transferred out of the detective bureau for talking to a local reporter about the loss of the election by the candidate he supported for mayor. A deposition by a police officer who held the station duty officer position before Peele and the suspicious timing of Peele’s transfer are enough to avoid summary judgment. Remands for further proceedings.
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Opinions July 8, 2013

July 8, 2013
7th Circuit Court of Appeals
Cincinnati Life Insurance Company v. Marjorie Beyrer
12-2365
Civil plenary. Affirms District Court rulings against Marjorie Beyrer, widow of Kevin Beyrer, in a life insurance dispute. The court found no merit on the issues she appealed after she failed to be awarded proceeds from her husband’s life insurance policy that was assigned to a third party. Dismissal of some claims for failing to comply with federal pleading standards and summary judgment in favor of Cincinnati Life on other claims was not an abuse of discretion, the court ruled.
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Opinions July 3, 2013

July 3, 2013
7th Circuit Court of Appeals
United States of America v. Ronald Ritz
11-3320
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge William T. Lawrence.
Civil. Dismisses Ritz’s appeal of the grant of summary judgment in favor of the government that Ritz’s campground is subject to the Safe Drinking Water Act and its regulations. Ritz has waived all of the new arguments he now raises for the first time on appeal by failing to present them to the District Court.
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Opinions July 2, 2013

July 2, 2013
Indiana Court of Appeals
Tequita Ramsey v. Lightning Corporation
49A02-1209-CC-705
Civil Collection. Affirms the trial court’s judgment in decertifying the class. In this case of first impression, the COA noted it could find no logical reason to hold that a trial court may never revoke or rescind an order certifying a class. To do so would mean that once a class action is certified, the class could not be later decertified even if facts and evidence discovered afterward suggests the class should not have been certified in the first place.
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Opinions July 1, 2013

July 1, 2013
Indiana Supreme Court
N.L. v. State of Indiana
47S01-1302-JV-126
Juvenile. Reverses and remands the trial court order placing N.L. on the sex offender registry, holding that the order was neither issued in connection with an evidentiary hearing nor accompanied by findings.
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Opinions June 28, 2013

June 28, 2013
Indiana Supreme Court
Brad W. Passwater v. State of Indiana
48S05-1210-PC-583
Post conviction. Affirms post-conviction court denial of Passwater’s petition for relief. In the decision, the court reconsiders the instructions it approved in Georgopuls v. State, 735 N.E. 2d 1138, 1143 n.3 (Ind. 2000), for juries faced with the option of finding a defendant not responsible by reason of insanity or guilty but mentally ill. The court concluded the instruction provided by the Indiana Pattern Jury Instruction 11.20 is better and approved its use.
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Opinions June 27, 2013

June 27, 2013
Indiana Court of Appeals
Timothy W. Parish v. State of Indiana
64A03-1210-CR-438
Criminal. Finds trial court properly denied Parish’s request for counsel at public expense because he had $130,000 in equity in his house, but the facts and circumstances of the case do not warrant a knowing and intelligent waiver of his right to counsel because the trial court did not advise him of the dangers and disadvantages of self-representation. Remands for a new trial.
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Opinions June 26, 2013

June 26, 2013
7th Circuit Court of Appeals
Michael Alexander v. United States of America
12-2190
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge Sarah Evans Barker.
Civil. Reverses Alexander’s malicious prosecution and intentional infliction of emotional distress lawsuit against the United States under the Federal Tort Claims Act. The complaint for malicious prosecution sets forth enough plausible detail to provide adequate notice to the defendants and survive a 12(b)(6) motion to dismiss. Concludes the IIED claim is timely and adequately states a claim.
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Opinions June 25, 2013

June 25, 2013
Indiana Supreme Court
Loren Hamilton Fry v. State of Indiana
09S00-1205-CR-361
Criminal. Affirms denial of bail for Fry, who is charged with murder. Holds that when a defendant charged with murder or treason seeks bail, the burden is on the state, if it seeks to deny bail, to show by a preponderance of the evidence that the proof is evident or the presumption strong. Chief Justice Dickson concurs to which Justice Rush joins; Rush concurs; Justice Massa concurs in result and dissents with separate opinion; and Justice Rucker dissents with separate opinion in which Massa concurs.
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Opinions June 24, 2013

June 24, 2013
Indiana Court of Appeals
Michael Howard v. Allen County Board of Zoning, Appeals and Alvin Schmucker
02A04-1301-PL-27
Civil plenary. Affirms dismissal of Howard’s petition for judicial review of the decision by the zoning board to grant a use variance for property owned by Schmucker. I.C. 36-7-4-1316 requires dismissal where no materials supporting judicial review of the petitioner’s claims are timely filed and an extension of the filing deadline is not timely requested. Finds the trial court’s determination that it lacked jurisdiction was clearly erroneous, but the statute required dismissal on non-jurisdictional grounds.
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  1. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  2. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  3. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  4. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

  5. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

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