Opinions

Opinions April 20, 2012

April 20, 2012
Indiana Court of Appeals
Andre M. Perry v. State of Indiana (NFP)
45A05-1108-CR-397
Criminal. Affirms convictions of murder, Class A felony attempted murder and Class D felony residential entry.
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Opinions April 19, 2012

April 19, 2012
Indiana Court of Appeals
Anthony Hogan v. State of Indiana
20A03-1103-PC-158
Post conviction. Affirms denial of petition for post-conviction relief. Hogan failed to show ineffective assistance of trial and appellate counsel.
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Opinions April 18, 2012

April 18, 2012
Indiana Court of Appeals
Todd Walters and Matenia Walters v. Aaron Austin and Herman & Goetz, Inc.
20A04-1106-CT-342
Civil tort. Dismisses the Walterses’ appeal of the judgment on a jury verdict in favor of Austin and his employer on the Walterses’ complaint for damages arising from a multi-vehicle accident. The appellate court does not have jurisdiction. Judge Darden dissents.
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Opinions April 17, 2012

April 17, 2012
7th Circuit Court of Appeals
United States of America v. Kimani Lanier Fleming
11-1404
U.S. District Court, Northern District of Indiana, South Bend Division, Judge Robert L. Miller Jr.
Criminal. Affirms Fleming’s revised sentence of 480 months imprisonment for convictions of several serious drug and firearm charges. There was no clear error in the District Court’s decision to include routine drug purchases as relevant conduct when it computed his revised sentencing guideline range. Denies Fleming’s implicit request for an expanded certificate of appealability. 
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Opinions April 16, 2012

April 16, 2012
Indiana Court of Appeals
Whiskey Barrel Planters Co., Inc., n/k/a Diggs Enterprises, Inc., Robinson Family Enterprises, LLC, et al. v. American GardenWorks, Inc., and Millennium Real Estate Investment, LLC
04A03-1011-PL-582
Civil plenary. Reverses determination in favor of American GardenWorks and Millennium Real Estate on AGW and MRE’s fraud claims against Whiskey Barrel and judgment for $409,611.24 and attorney fees and costs. The trial court erred in denying Whiskey Barrel’s motion for partial summary judgment on the issue of whether AGW was entitled to loans made to Whiskey Barrel shareholders and on the issue of whether AGW was entitled to 2008 season football tickets to Purdue that were purchased with Whiskey Barrel funds. The trial court erred in determining that AGW acquired the previous owner’s personal property under the terms of the purchase agreement. Remands for the trial court to determine the amount of attorney fees – if any – that are recoverable.
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Opinions April 13, 2012

April 13, 2012
The 7th Circuit Court of Appeals and Indiana appellate courts posted no opinions at IL deadline.
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Opinions April 12, 2012

April 12, 2012
7th Circuit Court of Appeals
United States of America v. Jaymie T. Mount
11-2616
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge Jane E. Magnus-Stinson.
Criminal. Remands for resentencing after the District Court denied the government’s motion for Mount to receive an additional one-level reduction following his guilty plea, citing Mount’s flight from charges. The additional reduction is mandatory once the government determines that the criteria spelled out in U.S.S.G. Section 3E1.1(b) are satisfied and it makes the necessary motion.
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Opinions April 11, 2012

April 11, 2012
Indiana Court of Appeals
Anthony Wade v. Terex-Telelect, Inc.
29A05-1101-CT-72
Civil tort. Reverses jury verdict in favor of Terex-Telelect on Wade’s negligence claim under the Indiana Product Liability Act. Wade was prejudiced by the judge instructing the jury as to the rebuttable presumption under Indiana Code 34-20-5-1. Remands for a new trial. Judge Bradford concurs in part and dissents in part.
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Opinions April 10, 2012

April 10, 2012
Indiana Court of Appeals
Salsbery Pork Producers, Inc., Richard K. Wilson, Tipton Co. Commissioners, Tipton Co. Highway Department, Chad Bergin, State of Indiana, Indiana Department of Transportation v. Latina Booth
49A02-1110-CT-983
Civil tort. Reverses trial court’s denial of motion for transfer of venue, holding that the state should have been dropped as a defendant because only Tipton County had control over the road where a crash occurred. Remands for proceedings consistent with its opinion that Tipton County is the preferred venue rather than Marion County.
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Opinions April 9, 2012

April 9, 2012
Indiana Court of Appeals
In the Matter of the Involuntary Term. of the Parent-Child Rel. of L.J., and R.J., III; and V.A., and R.J. v. Marion Co. Dept. of Child Services and Child Advocates (NFP)
49A02-1108-JT-804
Juvenile. Affirms termination of parental rights for mother and father.
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Opinions April 6, 2012

April 6, 2012
7th Circuit Court of Appeals
Beverly K. Copeland, et al. v. Penske Logistics LLC; Penske Logistics, Inc.; and Chauffeurs, Teamsters, Warehousemen and Helpers Local Union Number 135
11-1955
U.S. Ditrict Court, Southern District of Indiana, Indianapolis Division, Chief Judge Richard L. Young.
Civil. In hybrid breach-of-contract/duty-of-fair representation suit, affirms District Court’s grant of summary judgment in favor of the defendants in the matter of fair representation. Citing lack of subject matter jurisdiction, remanded for dismissal of the claim that the union failed to engage in good faith bargaining.
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Opinions April 5, 2012

April 5, 2012
Indiana Court of Appeals
GMAC Mortgage, LLC v. Ronald Glenn Dyer
28A04-1107-MF-404
Mortgage Foreclosure. Reverses trial court’s order that GMAC Mortgage rewrite an agreement about an FHA-insured loan that Ronald Dyer defaulted on. Appellate court held that under federal law and HUD regulations, deeds in lieu of foreclosure release the borrower from any mortgage obligation and in this case the standard language GMAC used was sufficient.

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Opinions April 4, 2012

April 4, 2012
Indiana Court of Appeals
Melanie Webster v. Walgreen Co.
55A01-1110-CT-442
Civil. Affirms judgment of trial court denying motion to amend the filing date of a complaint against Walgreen in order to comply with the statute of limitations. The appellate court held that “mailing” for purposes of the Indiana Trial Rules requires the sender to affix sufficient postage, and since that didn’t happen here the original complaint was untimely.
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Opinions April 3, 2012

April 3, 2012
Indiana Court of Appeals
William Minnick v. State of Indiana
47A05-1108-CR-448
Criminal. Minnick failed to establish that his right to speedy sentencing was violated. Reverses conviction of Class A felony robbery and orders that it be entered as a Class B felony due to double jeopardy and that a 20-year and consecutive sentence on this count be imposed. Minnick also failed to establish that the trial court abused its discretion in denying his request for a competency hearing.
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Opinions April 2, 2012

April 2, 2012
7th Circuit Court of Appeals
Laenise Arnett v. Michael J. Astrue, commissioner of Social Security
11-2424
U.S District Court, Northern District of Indiana, Fort Wayne Division, Judge Robert L. Miller Jr.
Civil. Reverses decision by administrative law judge to deny claim for disability insurance benefits as the judge failed to properly assess residual functional capacity. Remands for further proceedings.
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Opinions March 30, 2012

March 30, 2012
Indiana Court of Appeals
Kristine A. and Larry G. Dawson v. Fifth Third Bank
49A02-1107-PL-704
Civil plenary. Affirms order denying the Dawsons’ motion for summary judgment and granting Fifth Third Bank’s cross-motion for summary judgment on its claim for replevin. When Magish, who sold a motorcycle to the Dawsons, defaulted on his loan from Fifth Third, the bank as the secured party had the right to take possession of the motorcycle.
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Opinions March 29, 2012

March 29, 2012
Indiana Court of Appeals
Ronyai Thompson v. State of Indiana
49A05-1106-CR-323
Criminal. Affirms conviction of Class A felony dealing in cocaine. The trial court did not abuse its discretion when it denied Thompson’s motion to dismiss the charges against him. The court did not err when it granted the state’s peremptory challenges as to the two African-American members of the venire. There was sufficient evidence from which the jury could infer Thompson intended to exercise control over the cocaine.
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Opinions March 28, 2012

March 28, 2012
Indiana Court of Appeals
Juan M. Garrett v. State of Indiana
49A04-1107-PC-410
Post conviction. Affirms denial of petition for post-conviction relief. Because Garrett’s double jeopardy claims are without merit, he was not prejudiced by his trial and direct appeal attorneys’ failure to raise these claims.
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Opinions March 27, 2012

March 27, 2012
Indiana Court of Appeals
Lorraine (Carpenter) Miller v. Karl Carpenter
29A02-1107-DR-663
Domestic relation. Reverses the trial court’s grant of joint legal custody to father, holding the evidence does not support modification of custody. Rejects the mother’s argument that the court made a de facto modification of physical custody, holding the court merely modified parenting time, and holds the trial court did not abuse its discretion in reducing the father’s child support obligations.
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Opinions March 26, 2012

March 26, 2012
Indiana Court of Appeals
Lavern Ceaser v. State of Indiana
49A02-1106-CR-580
Criminal. Affirms trial court’s denial of Ceaser’s motion to dismiss, holding that her prior conviction for battering the same child in the same manner similar to the underlying incident was admissible under the intent and lack of accident or mistake exceptions to Indiana Evidence Rule 404(b). Further holds evidence at trial was sufficient to rebut her claim of parental privilege.
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Opinions March 23, 2012

March 23, 2012
Indiana Supreme Court
Troy R. Smith v. State of Indiana
35S02-1106-CR-369
Criminal. Affirms trial court’s judgment to revoke probation for Troy Smith on grounds that he failed to pay weekly child support as a condition of his probation. Justices disagreed with Smith’s appellate argument that state failed to carry its burden of proof that his failure to pay was reckless, knowing or intentional.
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Opinions March 22, 2012

March 22, 2012
Indiana Supreme Court
Sheila Perdue, et al. v. Michael A. Gargano, et al.
49S02-1107-PL-437
Civil plenary. Reverses in part Marion Superior Judge David Dreyer’s ruling on challenge to Indiana Family and Social Services Administration’s automated system of processing claims for Medicaid, food stamps, and temporary assistance. Holds that the FSSA’s denial notices are insufficiently explanatory but that the agency may deny an application when that person fails to cooperate in the eligibility determination process. Affirms in part the trial court’s grant of Sheila Perdue’s summary judgment motion on the grounds that she’s entitled to reasonable accommodations in applying for benefits but that does not necessarily require a caseworker or case management services.
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Opinions March 21, 2012

March 21, 2012
Indiana Supreme Court
State of Indiana v. International Business Machines Corporation
49S00-1201-PL-15
Civil plenary. Holds that Indiana Code 34-29-2-1 – providing that the governor of the state of Indiana is “privileged from arrest on civil process, and from obeying any subpoena to testify” – operates to preclude a trial court from issuing an order to compel the governor’s deposition in a contract dispute brought by the state of Indiana against a contractor. Justice Sullivan concurs in result.
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Opinions March 20, 2012

March 20, 2012
7th Circuit Court of Appeals
Estate of Nicholas D. Rice, deceased, by Rick D. Rice and Diane J. Waldrop, co-personal representatives v. Correctional Medical Services, et al.
http://media.ibj.com/Lawyer/websites/opinions/index.php?pdf=2012/march/GK0PUU3D.pdf
09-2804, 10-2389
U.S. District Court, Northern District of Indiana, South Bend Division, Judges Robert L. Miller Jr. and Rudy Lozano.
Civil. In No. 09-2804, affirms in part and reverse in part the District Court’s entry of summary judgment in favor of the defendants. A material dispute of fact precludes summary judgment on one of the estate’s Section 1983 claims. In No. 10-2389, reverses the District Court’s decision to dismiss the state claims on the basis of collateral estoppel. Remands both cases for further proceedings consistent with this opinion.
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Opinions March 19, 2012

March 19, 2012
Indiana Supreme Court
Jimmie E. Jones, Jr. v. State of Indiana
29S02-1108-CR-511
Criminal. Adopts Court of Appeals opinion in full, which affirmed the refusal by the trial court to give Jones’ tendered instructions on reckless homicide and involuntary manslaughter as lesser-included offenses to the murder charge. The evidence didn’t support a reckless homicide instruction and the charging information for the murder count foreclosed an involuntary manslaughter instruction.
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