Opinions

Opinions June 11, 2013

June 11, 2013
7th Circuit Court of Appeals
Judson Atkinson Candies, Incorporated v. Kenray Associates, Incorporated, Charles A. McGee and Kenneth J. McGee
12-1035, 12-1036
U.S. District Court, Southern District of Indiana, New Albany Division, Magistrate Judge William G. Hussmann Jr.
Civil. Reverses District Court ruling that Judson Atkinson must demonstrate that it had been induced by fraud to enter into the integration clause in a settlement agreement between it and Kenray Associates, as opposed to the agreement as a whole, in order to circumvent the parol evidence rule. Indiana law does not impose such a bright-line rule.

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Opinions June 10, 2013

June 10, 2013
7th Circuit Court of Appeals
United States of America v. Javier Munoz
12-3351
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge Larry J. McKinney.
Criminal. Affirms 181-month sentence following a guilty plea in 2007 to distributing and possessing cocaine with intent to distribute. Munoz materially breached the conditions of his release and an implied term of the plea agreement by fleeing the country rather than showing up for sentencing.
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Opinions June 7, 2013

June 7, 2013
Indiana Court of Appeals
In the Matter of the Supervised Admin. of the Estate of Cora E. Young, deceased; Terry Douthitt, Kelly Douthitt, and Kevin Douthitt v. Theodore R. Young
53A04-1301-EU-36
Estate, unsupervised. Affirms trial court’s finding that the proceeds of a sale of Cora Young’s property should be distributed to her second husband at her death. Since the property was a specific bequest under Young’s will and was sold before her death, it was adeemed by extinction and therefore the proceeds pass to the residuary beneficiary under her will, which is her second husband.
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Opinions June 6, 2013

June 6, 2013
Indiana Court of Appeals
Scott Speers v. State of Indiana
55A01-1208-CR-391
Criminal. Affirms conviction of Class C felony burglary and Class D felony theft. The trial court properly denied Speers’ motion for discharge under Rule 4(C) as much of the delay in bringing Speers to trial was attributable to him. The direct examination of the lead detective did not present evidence in such a way as to crate an evidentiary harpoon.
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Opinions June 5, 2013

June 5, 2013
Indiana Supreme Court
Term. of the Parent-Child Rel. of: K.T.K., K.C., and K.R.K. (Minor Children), and R.C. (Mother) v. Indiana Dept. of Child Services, Dearborn County Office
15S01-1306-JT-402
Juvenile. Sets aside the Court of Appeals order dismissing the mother’s appeal and affirms termination of parental rights. The record supports the trial court’s findings that the conditions resulting in the children’s continued placement outside of the home would not be remedied and termination of parental rights was in the best interest of the children. Denies father’s petition to transfer in separate order.

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Opinions June 4, 2013

June 4, 2013
Indiana Supreme Court
City of Indianapolis v. Rachael Buschman
49S02-1210-CT-598
Civil tort. Affirmed trial court’s grant of summary judgment in Buschman’s favor and remanded the case for further proceedings. Ruled that Buschman’s inclusion of information about her injuries does not restrict the scope of her claim. Although she stated in her claim she did not suffer any injuries from an auto accident involving an Indianapolis police officer, the amended statute governing the Indiana Tort Claims Act does not require a description of injuries. The court concluded when the Legislature amended the statute, it intended to remove any pre-existing requirement of specificity in regards to personal injuries.  
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Opinions June 3, 2013

June 3, 2013
7th Circuit Court of Appeals
United States of America v. Jeffrey Weaver
12-3324
Criminal. Vacates judgment of the U.S. District Court for the Southern District of Indiana and remands for resentencing. Weaver was sentenced to 235 months imprisonment after the District Court determined his sentence should be enhanced because he was functioning as a manager/supervisor in supplying methamphetamine to two buyers and pressuring them to sell the drugs. The Circuit Court found his actions did not rise to the 3-level enhancement because he did not have the control necessary to coerce the buyers. Instead Weaver was encouraging behavior that would protect his investment and insure payment of the debt owed to him. 
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Opinions May 31, 2013

May 31, 2013
Indiana Supreme Court
Brian Scott Hartman v. State of Indiana
68S01-1305-CR-395
Criminal. Reversed and remanded a trial court’s denial of a motion to suppress Hartman’s confession. Found Hartman’s previous invocation of his Miranda rights was still in place when detectives questioned him days later because his earlier request for counsel was unproductive which likely increased the coercive pressure.  

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Opinions May 30, 2013

May 30, 2013
7th Circuit Court of Appeals
United States of America v. Daniel L. Delaney
12-2849
U.S. District Court, Southern District of Indiana, Terre Haute Division, Judge Jane Magnus-Stinson.
Criminal. Delaney’s argument that no reasonable juror could have failed to find that he acted in the heat of passion when he killed his cellmate fails because there was considerable evidence of forethought, much of it emanating from the defendant’s own statements. Judge Bauer concurs.
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Opinions May 29, 2013

May 29, 2013
Indiana Court of Appeals
Jill Finfrock a/k/a Jill Bastone v. Mark Finfrock
64A05-1209-DR-489
Domestic relation. Reverses award of attorney fees to Mark Finfrock. The award was based on perceived violations of the Fair Debt Collection Practices Act, which is inapplicable because Finfrock’s arrearage of child support is not considered “debt” under the Act. The trial court did not abuse its discretion by declining Jill Bastone’s request to enter a qualified domestic relations order to attach to the entirety of her ex-husband’s retirement account. Remands for further proceedings.
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Opinions May 28, 2013

May 28, 2013
Indiana Court of Appeals
David Streeter v. State of Indiana (NFP)
44A04-1110-PC-640
Post conviction. Affirms denial of amended petition for post-conviction relief.
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Opinions May 24, 2013

May 24, 2013
Indiana Court of Appeals
Rebirth Christian Academy Daycare, Inc. v. Indiana Family & Social Services Administration
49A04-1209-MI-467
Miscellaneous. Affirms denial of the daycare’s motion to dissolve and/or modify the order in the First Amended Agreement Judgment between the daycare and FSSA. The trial court properly determined that Rebirth cannot employ LaSonda Carter pursuant to I.C. 12-17.2-6-14 despite an earlier trial court order restricting access to her criminal record.
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Opinions May 23, 2013

May 23, 2013
7th Circuit Court of Appeals
Tommy L. Morris, personal representative of the estate of Thomas Lynn Morris v. Salvatore Nuzzo
12-3220
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge Sarah Evans Barker.
Civil. Vacates the dismissal of the claims of Tommy Morris against Nuzzo. The District Court erred in its determination that Nuzzo was fraudulently joined. Remands with instructions the case be further remanded to the Trumbull County Common Pleas Court of Ohio.
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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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  2. The practitioners and judges who hail E-filing as the Saviour of the West need to contain their respective excitements. E-filing is federal court requires the practitioner to cram his motion practice into pigeonholes created by IT people. Compound motions or those seeking alternative relief are effectively barred, unless the practitioner wants to receive a tart note from some functionary admonishing about the "problem". E-filing is just another method by which courts and judges transfer their burden to practitioners, who are the really the only powerless components of the system. Of COURSE it is easier for the court to require all of its imput to conform to certain formats, but this imposition does NOT improve the quality of the practice of law and does NOT improve the ability of the practitioner to advocate for his client or to fashion pleadings that exactly conform to his client's best interests. And we should be very wary of the disingenuous pablum about the costs. The courts will find a way to stick it to the practitioner. Lake County is a VERY good example of this rapaciousness. Any one who does not believe this is invited to review the various special fees that system imposes upon practitioners- as practitioners- and upon each case ON TOP of the court costs normal in every case manually filed. Jurisprudence according to Aldous Huxley.

  3. Any attorneys who practice in federal court should be able to say the same as I can ... efiling is great. I have been doing it in fed court since it started way back. Pacer has its drawbacks, but the ability to hit an e-docket and pull up anything and everything onscreen is a huge plus for a litigator, eps the sole practitioner, who lacks a filing clerk and the paralegal support of large firms. Were I an Indiana attorney I would welcome this great step forward.

  4. Can we get full disclosure on lobbyist's payments to legislatures such as Mr Buck? AS long as there are idiots that are disrespectful of neighbors and intent on shooting fireworks every night, some kind of regulations are needed.

  5. I am the mother of the child in this case. My silence on the matter was due to the fact that I filed, both in Illinois and Indiana, child support cases. I even filed supporting documentation with the Indiana family law court. Not sure whether this information was provided to the court of appeals or not. Wish the case was done before moving to Indiana, because no matter what, there is NO WAY the state of Illinois would have allowed an appeal on a child support case!

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