Opinions

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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Opinions April 7, 2015

April 7, 2015
Indiana Court of Appeals
Glenn Sciaraffa v. State of Indiana
09A04-1410-CR-470
Criminal. Affirms conviction for dealing in methamphetamine, a Class B felony; maintaining a common nuisance, a Class D felony; possession of paraphernalia, a Class A misdemeanor; and an adjudication as a habitual substance offender. Finds no fundamental error occurred during the admission of presumptive positive test and rules the state’s closing arguments fell within the bounds of prosecutorial advocacy. Also holds the state presented sufficient evidence beyond a reasonable doubt to sustain Sciaraffa’s conviction for dealing in methamphetamine.
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Opinions April 6, 2015

April 6, 2015
Indiana Court of Appeals
Demetrius L. Grant, and Vickie O. Grant v. The Bank of New York Mellon Trust Co.
49A05-1404-MF-139
Mortgage foreclosure. Reverses and remands a grant of summary judgment in favor of Bank of New York Mellon Trust Co., and remands with instructions to dismiss the case. By refiling a suit that had been dismissed under Trial Rule 41(E) for failing to prosecute, the bank violated the rule and the doctrine of res judicata, since dismissal under T.R. 41(E), unless otherwise specified, operates as a judgment on the merits and dismissal with prejudice. 
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Opinions April 2, 2015

April 2, 2015
Indiana Court of Appeals
Nicholas A. Rushlow v. State of Indiana (mem. dec.)
20A03-1408-CR-310
Criminal. Affirms convictions and sentence for Class A felony attempted murder and Class C felony criminal recklessness.
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Opinions April 1, 2015

April 1, 2015
United States of America v. Christian J. Miller, Frank Jordan, and Joshua N. Bowser
14-1237, 14-1585, and 14-1592
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge Tanya Walton Pratt.
Criminal. Affirms judgments against defendants for various criminal charges, including wire fraud, racketeering, and conspiracy to distribute cocaine. Bowser’s case is remanded for further consideration of the term of his supervised release authorizing suspicionless searches.
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Opinions March 31, 2015

March 31, 2015
Indiana Court of Appeals
Berthal O. Williams and Patricia Williams v. The Indiana Rail Road Company
77A04-1311-CC-580
Civil collection. Reverses summary judgment in favor of the Indiana Rail Road Company on the Williamses’ attempt to enforce a 1901 indenture regarding a dam on their property. Concludes the indenture was a covenant running with the land, that the terms set forth in the indenture required IRR to maintain the dam and the water level at a specific depth, and that it contained a covenant, perpetual in nature, that did not cease upon a prior breach. Remands for further proceedings.
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Opinions March 30, 2015

March 30, 2015
Indiana Court of Appeals
In re: Indiana State Fair Litigation: Polet, et al. v. Mid-America Sound, et. al.
49A02-1404-CT-288
Civil tort. Majority reverses trial court order granting summary judgment in favor of the Indiana State Fair Commission on Mid-America Sound’s claim that its contract requires the commission to indemnify it against claims from the 2011 State Fair stage collapse that killed and injured patrons. The majority held the Indiana Tort Claims Act does not apply and there are genuine issues of material fact regarding the validity and enforceability of the indemnification agreement. Remands for trial. Chief Judge Nancy Vaidik dissented and would find the commission has immunity from Mid-America’s claims and that the Tort Claims Act applies.
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Opinions March 27, 2015

March 27, 2015
Indiana Court of Appeals
Jimmy Wallen, Jr. v. State of Indiana

79A02-1407-CR-469
Criminal. Affirms conviction of theft, a Class D felony. Splits over question of whether jury instruction invaded the role of the jury by presuming the state had established Wallen knowingly intended to deprive Walmart of its property. Finds jury instruction error harmless because the jury could have concluded from the evidence alone that Wallen had shoplifted.
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Opinions March 26, 2015

March 26, 2015
Indiana Supreme Court
First American Title Insurance Company v. Stephen W. Robertson, Insurance Commissioner of the State of Ind., in his Official Capacity, on Behalf of the Ind. Dept. of Insurance
49S04-1311-PL-732
Civil plenary. Grants rehearing to delete the first clause in third footnote. Agreed its reversal of the denial to dismiss First American’s petition appears to be inconsistent with its affirming the concerns about the timeliness of the commissioner of the Indiana Department of Insurance’s hearing order and First American’s failure to exhaust administrative remedies.

 
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Opinions March 25, 2015

March 25, 2015
Indiana Supreme Court
Dustin E. McCowan v. State of Indiana
64S03-1408-CR-516
Criminal. Affirms murder conviction, finding that a proposed jury instruction rejected by the judge regarding presumption of innocence had been sufficiently covered by other jury instructions and proceedings. States that prospectively, it is the absolute right of every criminal defendant to receive the following jury instruction, if requested: “The presumption of innocence continues in favor of the defendant throughout the trial. You should fit the evidence to the presumption that the defendant is innocent if you can reasonably do so.”
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Opinions March 24, 2015

March 24, 2015
Indiana Supreme Court
Drakkar R. Willis v. State of Indiana
49S02-1410-CR-617
Criminal. Reverses conviction of Class A misdemeanor criminal trespass, finding the evidence insufficient to sustain the conviction.
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Opinions March 23, 2015

March 23, 2015
Indiana Court of Appeals
Jerome Seward v. State of Indiana (mem. dec.)
49A02-1408-CR-567
Criminal. Affirms conviction of felony murder but vacates the convictions and sentences for  reckless homicide and battery, which placed him in double jeopardy. The aggregate 62-year sentence remains because sentences for the vacated offenses were to be served concurrently.
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Opinions March 20, 2015

March 20, 2015
Indiana Supreme Court
In the Matter of Dennis Alan Howell
94S00-1405-CQ-321
Certified question from the United States Bankruptcy Court for the Northern District of Indiana. Determines that spouses and children need not be the debtor’s dependents for policy exemptions to apply in life insurance policies involved in a bankruptcy estate.
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Opinions March 19, 2015

March 19, 2015
Indiana Court of Appeals
Indiana Alcohol and Tobacco Commission v. Lebamoff Enterprises, Inc.
49A02-1408-MI-529
Miscellaneous. Reinstates and affirms the ATC’s final order sanctioning Lebamoff Enterprises for using a common carrier to deliver alcohol to customers. ATC’s interpretation of the relevant statutory authority was reasonable and its order did not reflect an improper attempt to create an agency rule, but rather was a proper exercise of the ATC’s adjudicatory function. Remands with instructions.
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Opinions March 18, 2015

March 18, 2015
Indiana Supreme Court
Ball State University v. Jennifer Irons; In Re the Marriage of: Jennifer Irons and Scott Irons
45S03-1503-DR-134
Domestic relation. Reverses trial court’s order granting mother’s motion to join supplemental defendant, Ball State, and order release of transcript. Mother has not carried her burden in demonstrating that Ball State was a necessary party under Trial Rule 19. Remands with instructions to enter an appropriate order dismissing Ball State from this action.
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Opinions March 17, 2015

March 17, 2015
Indiana Tax Court
Blue Chip Casino, LLC v. LaPorte County Treasurer, and LaPorte County Convention & Visitors Bureau
49T10-1008-TA-37
Tax. Dismisses the casino’s appeal of the LaPorte County treasurer’s failure to respond to its request for a refund of innkeeper’s tax that it paid to the treasurer between January 2007 and August 2009 for lack of subject matter jurisdiction. All pending motions are hereby deemed moot.
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Opinions March 16, 2015

March 16, 2015
Indiana Court of Appeals
Redevelopment Commission of the Town of Munster, Indiana v. Indiana State Board of Accounts and Paul D. Joyce, State Examiner of State Board of Accounts
45A04-1408-PL-404
Civil plenary. Affirms summary judgment in favor of the state Board of Accounts. Holds the commission had standing to bring its declaratory judgment and the trial court did not err in determining that Indiana statute does not permit the use of TIF funds for the continued maintenance of completed redevelopment projects.
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Opinions March 13, 2015

March 13, 2015
7th Circuit Court of Appeals
United States of America v. Jackie H. Richardson
14-1901
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge Tanya Walton Pratt.
Criminal. Affirms denial of motion to dismiss the federal prosecution against Richardson. Holds that Richardson’s speedy trial right under the Sixth Amendment was not violated. Judge Hamilton concurs in separate opinion.
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Opinions March 12, 2015

March 12, 2015
Indiana Supreme Court
Indiana Restorative Dentistry, P.C. v. The Laven Insurance Agency, Inc. and ProAssurance Indemnity Co., Inc. F/K/A the Medical Assurance Co., Inc.
49S05-1407-PL-491
Civil plenary. Affirms summary judgment against IRD regarding Laven’s contractual duty to procure full coverage. Reverses summary judgment regarding Laven’s duty to advise. Holds that the designated evidence supports conflicting inferences on whether the parties enjoyed a special relationship that created a duty to advise. As for the implied contract to procure full coverage, holds that the record does not show any discussion between the parties on the matter, much less a meeting of the minds. Remands for further proceedings.
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Opinions March 11, 2015

March 11, 2015
Indiana Court of Appeals
Matthew Marcus, II v. State of Indiana
45A03-1407-CR-230
Criminal. Strikes Marcus’ appeal brief and remands the matter to the trial court for appointment of competent counsel. His public defender advocated for a review of his client’s sentence under the manifestly unreasonable standard, which was replaced more than a decade ago. And he failed to present a cogent argument with citation within relevant authority.
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Opinions March 10, 2015

March 10, 2015
Indiana Court of Appeals
J.B. v. State of Indiana
53A01-1408-CR-367
Criminal. Reverses denial of a petition for expungement of a conviction of Class A misdemeanor battery. The trial court erred when it denied J.B.’s petition to have records relating to his conviction expunged, citing the dismissal of the conviction after J.B. completed a one-year probation sentence. Holds that an earned dismissal of a conviction does not disqualify someone from expungement of the conviction.
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Opinions March 9, 2015

March 9, 2015
Indiana Court of Appeals
Stuart Reed and Michael Reed v. Michael Cassady
49A05-1405-PL-220
Civil plenary. Affirms order granting Cassady’s motion to enforce a $30,000 sanction as well as a finding that Distinctive Transportation Services, Inc. in contempt and imposition of a $10,000 fine. Reversal is not warranted on the order enforcing the $30,000 sanction and Reeds are jointly and severally liable. Also found reversal is not warranted of the $10,000 sanction.
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Opinions March 6, 2015

March 6, 2015
Indiana Court of Appeals
John Norris v. State of Indiana
34A04-1410-CR-499
Criminal. Remands to the trial court to reduce the sentence following a guilty plea to Class B felony dealing in a controlled substance from 20 years executed to 12 years with eight years executed. The panel concluded the sentence was excessive in light of the offense of selling 10 hyrdocodone pills for a total of $60.
 
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Opinions March 5, 2015

March 5, 2015
Indiana Supreme Court
Kenneth Griesemer v. State of Indiana
49S04-1408-CR-564
Criminal. Affirms conviction of patronizing a prostitute. Finds the undercover detective merely presented Griesemer with an opportunity to patronize a prostitute and there was no inducement and therefore no entrapment. Justices Dickson and Rucker dissent with separate opinion.
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  1. Im very happy for you, getting ready to go down that dirt road myself, and im praying for the same outcome, because it IS sometimes in the childs best interest to have visitation with grandparents. Thanks for sharing, needed to hear some positive posts for once.

  2. Been there 4 months with 1 paycheck what can i do

  3. our hoa has not communicated any thing that takes place in their "executive meetings" not executive session. They make decisions in these meetings, do not have an agenda, do not notify association memebers and do not keep general meetings minutes. They do not communicate info of any kind to the member, except annual meeting, nobody attends or votes because they think the board is self serving. They keep a deposit fee from club house rental for inspection after someone uses it, there is no inspection I know becausee I rented it, they did not disclose to members that board memebers would be keeping this money, I know it is only 10 dollars but still it is not their money, they hire from within the board for paid positions, no advertising and no request for bids from anyone else, I atteended last annual meeting, went into executive session to elect officers in that session the president brought up the motion to give the secretary a raise of course they all agreed they hired her in, then the minutes stated that a diffeerent board member motioned to give this raise. This board is very clickish and has done things anyway they pleased for over 5 years, what recourse to members have to make changes in the boards conduct

  4. Where may I find an attorney working Pro Bono? Many issues with divorce, my Disability, distribution of IRA's, property, money's and pressured into agreement by my attorney. Leaving me far less than 5% of all after 15 years of marriage. No money to appeal, disabled living on disability income. Attorney's decision brought forward to judge, no evidence ever to finalize divorce. Just 2 weeks ago. Please help.

  5. For the record no one could answer the equal protection / substantive due process challenge I issued in the first post below. The lawless and accountable only to power bureaucrats never did either. All who interface with the Indiana law examiners or JLAP be warned.

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