Opinions

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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Opinions Sept. 23, 2013

September 23, 2013
Opinions, Sept. 23, 2013

Indiana Court of Appeals

C. Subah Packer v. The Indiana Department of Workforce Development
93A02-1301-EX-83
Agency action. Affirms determination of a liability administrative law judge that a horse stable owner must pay unemployment compensation taxes plus interest and penalties for employees during the years 2008-2011 because they performed some amount of non-agricultural labor. Because employment records did not establish the amount of wages paid to workers for agricultural or non-agricultural work, a determination that Packer must pay taxes on total compensation for the audit years is not arbitrary, unreasonable, against the evidence or contrary to law.
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Opinions - Sept. 20, 2013

September 20, 2013
Opinions – Sept. 20, 2013

Indiana Court of Appeals


Walter E. Lunsford v. Deutsche Bank Trust Company Americas as Trustee
30A01-1302-MF-63
Mortgage foreclosure. Affirms trial court grant of summary judgment in favor of Deutsche Bank, holding that its mortgage was the senior lien on a property that Walter Lunsford sold on a land contract years earlier but failed to record until after the mortgage was recorded. Deutsche Bank is the holder of the note and was entitled to enforce the loan document after a default, and Lunsford waived his arguments that the bank lacks standing and that it refused his offer to make payment in full because those arguments were not raised before the trial court.
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Opinions Sept. 19, 2013

September 19, 2013
Beneficial Financial 1 Inc., Successor in Interest to Beneficial Mortgage Co. of Indiana v. Sharon Hatton, a/k/a Sharon J. Hatton, First Select, Inc., Calvary SPV, II, LLC, and Discover Bank
45A03-1212-MF-531
Mortgage foreclosure. Reverses trial court grant of dismissal for failure to state a claim upon which relief can be granted, finding that a surviving company after a merger needs no documentation of assignment of interest in Hatton’s mortgage, and remands to the trial court with instructions to reinstate Beneficial’s complaint for damages. Beneficial also must have an opportunity to prove that a mutual mistake was the cause of an erroneous legal description of the property secured by the mortgage.
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Opinions Sept. 18, 2013

September 18, 2013
Indiana Supreme Court
Kevin M. Clark v. State of Indiana
20S05-1301-CR-10
Criminal. Reverses conviction and 45-year sentence for Class A felony attempted dealing in methamphetamine, holding that police violated the Fourth Amendment protections of Kevin Clark when a late-night call regarding someone allegedly living improperly at a 24-hour self-storage unit instead became a “fishing expedition” for narcotics based on an officer’s hunch. Officers saw nothing illegal or appearing to constitute narcotics use, and evidence gathered from resulting search must be suppressed as fruit of the poison tree, a 4-1 majority ruled. Justice Mark Massa dissented, holding that when Clark dropped a bag as police approached, it provided reasonable suspicion, as did Clark’s subsequent admission that the bag contained marijuana.
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Opinions Sept. 17, 2013

September 17, 2013
Indiana Tax Court
United Parcel Service, Inc. v. Indiana Department of State Revenue
49T10-0704-TA-24
Premiums tax. On remand from a reversal by the Indiana Supreme Court, denies UPS’s motion for summary judgment of an appeal of taxes due for the years 2000 and 2001 and grants summary judgment in favor of the Department of Revenue, holding that statutes governing premiums tax on out-of-state insurers are immune from Commerce Clause challenges.
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Opinions Sept. 16, 2013

September 16, 2013
Indiana Court of Appeals
Larry Lyons, Jr. v. State of Indiana
36A01-1208-CR-331
Criminal. Affirms conviction for Class B felony dealing in methamphetamine and Class D felony methamphetamine possession. Finds there is no evidence that the trial court’s failure to provide instructions in strict accordance to Indiana Code 35-37-2-4 and Indiana Jury Rule 26(b) caused Lyons harm or put him at substantial risk of harm.
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Opinions Sept. 13, 2013

September 13, 2013
Von Tobel Corporation, Individually, and d/b/a Von Tobel Lumber & Hardware; and Von Tobel Lumber & Home Center, Inc. v. Chi-Tec Construction & Remodeling, Inc.; John F. Ziola, Jr.; Et Al.
46A03-1301-MI-18
Miscellaneous/mechanic’s lien. Reverses grant of summary judgment in favor of the Margret Lynn West trust, one of the defendant parties, and orders summary judgment entered for Von Tobel. The panel reversed a trial court ruling that the lien was invalid because a pre-lien notice named “Von Tobel Lumber & Home Center Inc.” and the lien notice named “Von Tobel Corporation” as claimants. The difference was minimal, not misleading and didn’t prejudice the trust or other parties, the panel held.
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Opinions Sept. 12, 2013

September 12, 2013
Indiana Supreme Court
Clark County Board of Aviation Commissioners, Board of Commissioners of Clark County, Indiana v. Dennis Dreyer and Margo Dreyer, as Co-Personal Reps. of the Estate of Margaret A. Dreyer
10S01-1308-PL-529
Civil plenary. Grants transfer to dispel confusion arising from “inartful language” in previous opinion.
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Opinions Sept. 11, 2013

September 11, 2013
7th Circuit Court of Appeals
David Hughes v. Kore of Indiana Enterprise Inc., et al.
13-8018
Civil. Reverses decertification of a class action, finding the U.S. District Court for the Southern District of Indiana, Indianapolis Division, did not provide adequate grounds for the ruling, and remands for further proceedings.
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Opinions Sept. 10, 2013

September 10, 2013
U.S. 7th Circuit Court of Appeals
United States of America v. John Scott
12-2962
Criminal. Affirms U.S. District Court for the Northern District of Indiana ruling denying a motion to suppress evidence gathered from a search warrant issued after a driveway conversation involving drug deals was captured without the knowledge of either party, after a dealer took a confidential informant’s vehicle to meet his supplier, John Scott. The panel held that sufficient evidence aside from the recorded conversation supported the issuance of the warrant.
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Opinions Sept. 9, 2013

September 9, 2013
U.S. 7th Circuit Court of Appeals
United States of America v. Christopher Eads
12-2464
Criminal. Affirms conviction and 480-month sentence for distributing child pornography, possessing child pornography and tampering with a witness. Addresses the issues Eads raises on appeal but upholds the decision of the U.S. District Court of the Southern District of Indiana, Indianapolis Division. Finds the district court did not abuse its discretion in allowing Eads to represent himself; the conviction for witness tampering was supported by the evidence; a new trial is not warranted because no new evidence has been discovered; and the discussion of 18 U.S.C. 3553 factors at sentencing was sufficient. Agrees with Eads that the district court erred in not thoroughly explaining on the record why it allowed images to be shown to the jury but rules the error is harmless because the additional evidence against him was overwhelming.  
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Opinions, Sept. 6, 2013

September 6, 2013
7th Circuit Court of Appeals
Scott Weigle and April Weigle v. SPX Corp.
12-3024 and John Moore, II and Corinne Moore v. SPX Corp.

12-3025
Civil. Vacates a district court grant of summary judgment for SPX Corp. on a complaint seeking damages due design defects on a semi-truck trailer support stand from which a trailer fell on mechanics. Affirms the district court judgment of summary judgment with respect to inadequate-warning claims.
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Opinions Sept. 5, 2013

September 5, 2013

Opinions, Sept. 5, 2013

Indiana Court of Appeals
Ezekier Breaziel v. State of Indiana (NFP)
49A02-1209-CR-731
Criminal. Dismisses Breaziel’s interlocutory appeal of the denial of his motion to dismiss the charges against. Concludes sua sponte the COA lacks authority under the appellate rules to accept jurisdiction of Breaziel’s appeal.

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Opinions Sept. 4, 2013

September 4, 2013
Indiana Court of Appeals
Joshua Basey v. State of Indiana (NFP)
48A01-1301-CR-40
Criminal. Affirms conviction of Class D felony battery.
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Opinions Sept. 3, 2013

September 3, 2013
7th Circuit Court of Appeals
USA v. Farshad Ghiassi
12-3596
Criminal. Affirms 70-month sentence for Ghiassi’s guilty plea to being a felon in possession of a firearm, in violation of 18 U.S. Code 922(g)(1). Finds the District Court was uniquely and well-situated to assess the credibility of Ghiassi’s co-defendant and her statements that she purchased eight firearms on his behalf. Also rejects Ghiassi’s alternative argument that the District Court deprived him of due process. Rules Ghiassi knew the court was going to rely on his co-defendant’s statements and he had opportunity to challenge those statements.
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Opinions August 27, 2013

August 27, 2013
Indiana Supreme Court
John W. Schoettmer & Karen Schoettmer v. Jolene C. Wright & South Central Community Action Program, Inc.
49S04-1210-CT-607
Civil Tort. Reverses grant of summary judgment in defendants favor and remands for further proceedings. Rules even though the Schoettmers filed their law suit against South Central well past the Indiana Tort Claims Act’s 180-day deadline, they should be allowed to present proof of estoppel to the trial court. Finds South Central never told John Schoettmer it was covered by the Act and that South Central’s insurer did not make a settlement offer until nearly three months after the ITCA deadline.
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Opinions August 26, 2013

August 26, 2013
IL Staff
Indiana Court of Appeals

Stephanie Murry v. State of Indiana (NFP)
49A02-1301-CR-39
Criminal. Affirms revocation of placement in Marion County Community Corrections
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Opinions August 23, 2013

August 23, 2013
7th Circuit Court of Appeals
Larry Butler et al. v. Sears, Roebuck and Co.
11-8029, 12-8030
Civil. On remand from the U.S. Supreme Court, reinstates class-action certification for two claims regarding front-loading Kenmore washing machines sold by Sears: that design defects created odor-producing mold and cause the machine to stop at inopportune times. Applying the SCOTUS holding in Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013), the court held that a single common issue of liability ran through class action claims: whether the washers were defective.
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Opinions Aug. 22, 2013

August 22, 2013
Indiana Court of Appeals
Roger A. Buchanan and Susan Buchanan v. HSBC Mortgage Services, Inc.
39A01-1211-MF-515
Mortgage foreclosure. Affirms trial court grant of summary judgment in favor of HSBC Mortgage Services, holding that even if a mortgage was not properly acknowledged, the Buchanans don’t deny that they executed a mortgage and note when they purchased their home, on which they stopped making mortgage payments in 2007. The Buchanans’ arguments therefore are without merit.
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Opinions, Aug. 21, 2013

August 21, 2013
Opinions – Aug. 21, 2013
Indiana Court of Appeals

Rodney Melton v. State of Indiana
49A02-1212-CR-1008
Criminal. Affirms conviction of Class C felony child molesting and Class D felony dissemination of matter harmful to minors, rejecting an argument that the dissemination statute requires a “performance” under that law be public. The court also found Melton’s 11-year aggregate sentence was not inappropriate in light of his character and the nature of the offense.
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Opinions Aug. 20, 2013

August 20, 2013
Indiana Court of Appeals
Carl J. Brandenburg v. State of Indiana
40A04-1301-CR-23
Criminal. Affirms revocation of probation for failure to pay child support after conviction of a Class C felony charge of non-support of a dependent child, but remands to the trial court for a recalculation of the arrearage. The court found that Brandenburg’s daughter had turned 21 before he was charged, and the state acknowledged uncertainty about the ruling that the arrearage was $17,795.05, rather than an amount closer to $10,000, as Brandenburg claims.
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  1. State Farm is sad and filled with woe Edward Rust is no longer CEO He had knowledge, but wasn’t in the know The Board said it was time for him to go All American Girl starred Margaret Cho The Miami Heat coach is nicknamed Spo I hate to paddle but don’t like to row Edward Rust is no longer CEO The Board said it was time for him to go The word souffler is French for blow I love the rain but dislike the snow Ten tosses for a nickel or a penny a throw State Farm is sad and filled with woe Edward Rust is no longer CEO Bambi’s mom was a fawn who became a doe You can’t line up if you don’t get in a row My car isn’t running, “Give me a tow” He had knowledge but wasn’t in the know The Board said it was time for him to go Plant a seed and water it to make it grow Phases of the tide are ebb and flow If you head isn’t hairy you don’t have a fro You can buff your bald head to make it glow State Farm is sad and filled with woe Edward Rust is no longer CEO I like Mike Tyson more than Riddick Bowe A mug of coffee is a cup of joe Call me brother, don’t call me bro When I sing scat I sound like Al Jarreau State Farm is sad and filled with woe The Board said it was time for him to go A former Tigers pitcher was Lerrin LaGrow Ursula Andress was a Bond girl in Dr. No Brian Benben is married to Madeline Stowe Betsy Ross couldn’t knit but she sure could sew He had knowledge but wasn’t in the know Edward Rust is no longer CEO Grand Funk toured with David Allan Coe I said to Shoeless Joe, “Say it ain’t so” Brandon Lee died during the filming of The Crow In 1992 I didn’t vote for Ross Perot State Farm is sad and filled with woe The Board said it was time for him to go A hare is fast and a tortoise is slow The overhead compartment is for luggage to stow Beware from above but look out below I’m gaining momentum, I’ve got big mo He had knowledge but wasn’t in the know Edward Rust is no longer CEO I’ve travelled far but have miles to go My insurance company thinks I’m their ho I’m not their friend but I am their foe Robin Hood had arrows, a quiver and a bow State Farm has a lame duck CEO He had knowledge, but wasn’t in the know The Board said it was time for him to go State Farm is sad and filled with woe

  2. The ADA acts as a tax upon all for the benefit of a few. And, most importantly, the many have no individual say in whether they pay the tax. Those with handicaps suffered in military service should get a pass, but those who are handicapped by accident or birth do NOT deserve that pass. The drivel about "equal access" is spurious because the handicapped HAVE equal access, they just can't effectively use it. That is their problem, not society's. The burden to remediate should be that of those who seek the benefit of some social, constructional, or dimensional change, NOT society generally. Everybody wants to socialize the costs and concentrate the benefits of government intrusion so that they benefit and largely avoid the costs. This simply maintains the constant push to the slop trough, and explains, in part, why the nation is 20 trillion dollars in the hole.

  3. Hey 2 psychs is never enough, since it is statistically unlikely that three will ever agree on anything! New study admits this pseudo science is about as scientifically valid as astrology ... done by via fortune cookie ....John Ioannidis, professor of health research and policy at Stanford University, said the study was impressive and that its results had been eagerly awaited by the scientific community. “Sadly, the picture it paints - a 64% failure rate even among papers published in the best journals in the field - is not very nice about the current status of psychological science in general, and for fields like social psychology it is just devastating,” he said. http://www.theguardian.com/science/2015/aug/27/study-delivers-bleak-verdict-on-validity-of-psychology-experiment-results

  4. Indianapolis Bar Association President John Trimble and I are on the same page, but it is a very large page with plenty of room for others to join us. As my final Res Gestae article will express in more detail in a few days, the Great Recession hastened a fundamental and permanent sea change for the global legal service profession. Every state bar is facing the same existential questions that thrust the medical profession into national healthcare reform debates. The bench, bar, and law schools must comprehensively reconsider how we define the practice of law and what it means to access justice. If the three principals of the legal service profession do not recast the vision of their roles and responsibilities soon, the marketplace will dictate those roles and responsibilities without regard for the public interests that the legal profession professes to serve.

  5. I have met some highly placed bureaucrats who vehemently disagree, Mr. Smith. This is not your father's time in America. Some ideas are just too politically incorrect too allow spoken, says those who watch over us for the good of their concept of order.

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