Opinions

Opinions May 22, 2013

May 22, 2013
Indiana Court of Appeals
Lydia Lanni v. National Collegiate Athletic Association, et al.
49A05-1208-CT-392
Civil tort. Reverses summary judgment in favor of the NCAA on Lanni’s negligence claim. The trial court abused its discretion when it denied Lanni’s April 20, 2012, motion for alteration of time. It effectively deprived her of a reasonable opportunity to present any material made pertinent to a Trial Rule 56 motion. Affirms denial of Lanni’s motion to strike the affidavit by the NCAA’s fencing championship manager, designated by the NCAA, that the NCAA was not involved in the fencing match where Lanni was injured.
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Opinions May 21, 2013

May 21, 2013
Indiana Court of Appeals
Charles Pickering v. Caesars Riverboat Casino, LLC d/b/a Horseshoe Southern Indiana
31A01-1209-CT-429
Civil tort. Affirms grant of summary judgment in favor of defendant, holding that an injury Charles Pickering sustained after passing beneath caution tape and falling on a snowy and icy parking garage surface could not be attributed to Horseshoe Casino, which had cordoned off the area.
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Opinions May 20, 2013

May 20, 2013
7th Circuit Court of Appeals
United States of America v. John W. Bloch, III
12-2784
U.S. District Court, Northern District of Indiana, South Bend Division, Judge Robert L. Miller Jr.
Criminal. Affirms in part, reverses in part and remands. The court affirmed a conviction of firearm possession by a felon, but found error in convictions of two counts under 18 U.S.C. Section 922 because the possession of two firearms arose from the same incident. Ordered the District Court for the Northern District of Indiana to merge the convictions and resentence Bloch on a single count.
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Opinions May 17, 2013

May 17, 2013
Indiana Supreme Court
State of Indiana ex rel. Glenn D. Commons, et al. v. The Hon. John R. Pera, et al.
45S00-1303-OR-209
Original action/judiciary. Grants in part and denies in part relief sought by relators, Lake County magistrates, who sought to prevent civil division Judge Nicholas Schiralli from transferring to the juvenile bench. The court held that Schiralli, who had not been appointed to the bench through merit selection, may not transfer without first being appointed through merit selection. The court denied the magistrates’ request that no judicial transfers be allowed without merit selection. The court denied Lake County judges’ assertion that the Lake County merit selection statute in question, I.C. 33-33-45-21(e), is unconstitutional.
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Opinions May 16, 2013

May 16, 2013
Indiana Court of Appeals
Jason Lee Sowers v. State of Indiana
08A02-1208-CR-640
Criminal. Reverses convictions of Class D felonies criminal recklessness and resisting law enforcement. The bailiff improperly communicated with the jury foreperson, resulting in fundamental error. Remands for further proceedings. Judge Bradford dissents.
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Opinions May 15, 2013

May 15, 2013
Indiana Court of Appeals
Richard J. Bond and Janet A. Bond, et al. v. Templeton Coal Company, Inc.
42A01-1209-PL-419
Civil plenary. Affirms summary judgment for Templeton Coal Co. on its complaint to quiet title to certain mineral interests. Considering Section 2’s ambiguity, the rule to strictly construe acts in derogation of the common law, and the Mineral Lapse Act’s underlying purposes, holds that Section 2 of the Act is limited in its retroactive application to only the twenty-year period immediately preceding the effective date of the Act, or September 2, 1951.
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Opinions May 14, 2013

May 14, 2013
Indiana Supreme Court
State of Indiana v. John Doe
49S00-1201-CT-14
Civil tort. Reverses judgment declaring I.C. 34-51-3-4, -5, and -6 impermissibly inconsistent with Article 1, Section 20 and Article 3, Section 1 of the Indiana Constitution. The cap and allocation scheme of punitive damages does not infringe upon the right to a jury trial, and the cap does not offend the separation of powers. Remands with instructions to grant Stewart’s motion to reduce the punitive damages to the statutory maximum and order that 75 percent of the award be deposited in the Violent Crime Victim Compensation Fund. 
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Opinions May 13, 2013

May 13, 2013
Indiana Court of Appeals
Joseph Matheny v. State of Indiana
49A04-1207-CR-347
Criminal. Grants petition for rehearing to clarify that the previous holding – that the trial court’s refusal of Matheny’s tendered instruction constituted error in light of Santiago v. State and Albores v. State – does not conflict with those cases. The judges reaffirmed their original decision which affirmed the Class D felony auto theft conviction and found that although the trial court erred in refusing to give the instruction regarding the jury’s duty to conform the evidence to the presumption that the defendant is innocent, the error was harmless.
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Opinions May 10, 2013

May 10, 2013
7th Circuit Court of Appeals
Royce Brown v. John F. Caraway, Warden
12-1439
U.S. District Court, Southern District of Indiana, Terre Haute Division, Judge William T. Lawrence.
Civil. Reverses denial of Brown’s petition for habeas corpus under 28 U.S.C. Section 2241 in which he argued under Begay v. United States, 553 U.S. 137 (2008), his prior Delaware conviction for arson in the third degree did not qualify as a crime of violence. Brown is entitled to relief, and under Begay, his prior conviction doesn’t qualify as “generic” arson under the enumerated crimes clause of the career offender guideline, nor is it covered by the residual clause. Remands with instructions to reduce his drug and firearm sentence to reflect that he is not a career offender under Section U.S.S.G. Section 4B1.1. Chief Judge Easterbrook issued a statement concerning the circulation under Circuit Rule 40(e).
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Opinions May 9, 2013

May 9, 2013
Indiana Court of Appeals
Bonnie Moryl, as Surviving Spouse and Personal Rep. of the Estate of Richard A. Moryl, Deceased v. Carey B. Ransone, M.D.; La Porte Hospital; Dawn Forney, RN; Wanda Wakeman, RN BSBA; et al.
46A04-1112-CT-710
Civil tort. Affirms summary judgment for the defendants, on which the trial court determined that Bonnie Moryl’s proposed complaint for medical malpractice was not timely filed with the Indiana Department of Insurance. The trial court properly found that her complaint sent to the DOI by FedEx was filed one day late under the two-year statute of limitations.
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Opinions May 8, 2013

May 8, 2013
7th Circuit Court of Appeals
Terri Basden v. Professional Transportation Inc.
11-2880
U.S. District Court, Southern District of Indiana, Evansville Division, Judge William T. Lawrence.
Civil. Affirms summary judgment for Professional Transportation on Basden’s claim she was terminated in violation of the Americans with Disabilities Act or the Family and Medical Leave Act. Basden failed to present evidence sufficient to establish a prima facie right to the protection of the ADA or FMLA.
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Opinions May 7, 2013

May 7, 2013
7th Circuit Court of Appeals
Jose J. Loera, Jr. v. United States of America
11-3223
Criminal. Affirms drug conviction and 240-month prison sentence, holding that Loera failed to prove his attorney provided ineffective legal counsel. Loera claimed that a prior grant of a motion to suppress his statements to police before consulting an attorney should have been binding on future proceedings. The court held it was doubtful that a subsequent refusal to suppress on different grounds, if it was error, was harmful.

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Opinions May 6, 2013

May 6, 2013
Indiana Court of Appeals
Love Jeet Kaur v. State of Indiana
29A05-1208-CR-424
Criminal. Affirms trial court denial of motion to dismiss charges of Class D felony dealing in a synthetic cannabinoid, Class D felony possession of a synthetic cannabinoid, and Class D felony maintaining a common nuisance. The panel ruled that Indiana’s synthetic drug law, I.C. § 35-31.5-2-321, was not vague as applied to Kaur and did not represent an unconstitutional delegation of legislative power to the Board of Pharmacy.
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Opinions May 3, 2013

May 3, 2013
Indiana Court of Appeals
Kevin Brodley v. State of Indiana (NFP)
49A02-1209-CR-725
Criminal. Affirms conviction of Class C felony burglary, Class D felony theft, Class A misdemeanor criminal mischief and adjudication as a habitual offender.
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Opinions May 2, 2013

May 2, 2013
Indiana Supreme Court
Gerald P. VanPatten v. State of Indiana
02S03-1205-CR-251
Criminal. Vacates two convictions of child molesting, one as a Class A felony and one as a Class C felony, because a nurse’s testimony about statements made by the alleged six-year-old victim, who later recanted, should not have been admitted as substantive evidence. Affirms trial court was within its discretion to deny VanPatten’s attorneys’ motions to withdraw. Justice Massa concurs in result with a separate opinion in which Justice Rush joins. Remands for a new trial on the two counts.
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Opinions April 30, 2013

April 30, 2013
Indiana Court of Appeals
Countrywide Home Loans, Inc. v. Robert Holland

45A04-1202-PL-53
Civil plenary. Reverses summary judgment on Holland’s quiet title action and remands with instructions to enter summary judgment in Countrywide’s favor. Affirms dismissal of Holland’s common-law lien claim and remands with instructions to vacate the award of nominal damages. Holland is not entitled to summary judgment on the merits of his quiet title claim.
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Opinions April 29, 2013

April 29, 2013
Indiana Court of Appeals
Swami, Inc., et al. v. Franklin Drywall II, LLC (NFP)
10A01-1208-MF-398
Mortgage foreclosure. Affirms determination that Franklin Drywall was entitled to recover $48,681.60 and award of attorney fees to the company in dispute over delays in completing drywall work. Reverses finding that a certain mortgage debt should not be considered to be a lien against the property in question. Remands for further proceedings.
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Opinions April 26, 2013

April 26, 2013
7th Circuit Court of Appeals
Big Ridge Inc., Jerad Bickett, et al. v. Federal Mine Safety and Health Review Commission, et al.
12-2316, 12-2460
Review of order. Denies petitions for review filed by mine operators and a group of mine employees regarding regulations that allow for Federal Mine Safety and Health Administration inspectors to review employee medical and personnel records during inspections to verify the mines have not been under-reporting miners’ injuries and illnesses.
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Opinions April 25, 2012

April 25, 2013
7th Circuit Court of Appeals
Emilio Martino v. Western & Southern Financial Group
12-1855
U.S. District Court, Northern District of Indiana, Fort Wayne Division, Judge Theresa L. Springmann.
Civil. Affirms summary judgment for Western & Southern Financial Group on Martino’s lawsuit for religious discrimination and defamation. Martino’s evidence neither calls into doubt W&S’s explanation for his discharge – that he did not provide documents verifying his eligibility for employment in the U.S. – nor establishes a prima facie case of defamation.
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Opinions April 24, 2013

April 24, 2013
Indiana Court of Appeals
Joshua McCaine Pillow v. State of Indiana
71A04-1206-CR-325
Criminal. Affirms conviction of Class C felony operating a motor vehicle after driving privileges had been forfeited for life. There was sufficient evidence Pillow operated a motor vehicle and his driving privileges had been forfeited for life, which is all the state is obliged to prove under I.C. 9-30-10-17.
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Opinions April 23, 2013

April 23, 2013
Indiana Court of Appeals
Kenyatta Erkins and Ugbe Ojile v. State of Indiana
58A01-1205-CR-215
Criminal. Affirms convictions of Class A felony conspiracy to commit robbery resulting in serious bodily injury. Rejected all the issues Erkins and Ojile raised on appeal. Found the trial court did not err in permitting the amendment to the charging information; the evidence was sufficient to show the pair intended and agreed to commit robbery that would result in serious bodily injury; the trial court did not abuse its discretion in admitting evidence gathered after Erkins and Ojile left the casino; any error in admitted interpretations of the pair’s phone conversation was harmless; and the prosecutor did not commit misconduct nor cause a fundamental error.
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Opinions April 22, 2013

April 22, 2013
Indiana Court of Appeals
Douglas A. Guilmette v. State of Indiana
71A04-1205-CR-250
Criminal. Affirms conviction for murder. The court found although the trial court did err by admitting DNA from a bloody shoe into evidence, the error was harmless because other substantial and independent evidence supported the conviction. It also ruled the trial court did not abuse its discretion by instructing the jury on accomplice liability, and it ruled the evidence was ample to sustain the murder conviction. 
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Opinions April 19, 2013

April 19, 2013
Indiana Court of Appeals
Razien McCullough v. State of Indiana
49A02-1210-CR-789
Criminal. Affirms two murder convictions and a 115-year aggregate sentence, holding that the state presented sufficient evidence to disprove McCullough’s claim of self-defense and that the sentence was not inappropriate given the nature of the crimes and McCullough’s character.
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Opinions April 18, 2013

April 18, 2013
7th Circuit Court of Appeals
United States of America v. Johnnie C. Collins
12-3317
U.S. District Court, Northern District of Indiana, Fort Wayne Division, Judge Theresa L. Springmann.
Criminal. Affirms denial of motion to suppress evidence in drug case in which Collins entered a conditional plea of guilty to possession of crack with intent to distribute and possession of powder cocaine with intent to distribute.

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Opinions April 17, 2013

April 17, 2013
Indiana Court of Appeals
Earlie B. Berry, Jr. v. State of Indiana (NFP)
02A03-1210-CR-455
Criminal. Affirms conviction of Class C felony burglary.
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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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