Opinions Nov. 16, 2013

November 15, 2013
Indiana Supreme Court
Patrick Austin v. State of Indiana
Criminal. Affirms conviction and aggregate 45-year sentence for two counts of Class A felony dealing in cocaine. A traffic stop and canine search that led to the discovery of nearly 90 pounds of cocaine hidden in a semi-truck was not unreasonable, and the trial court’s decision to continue Austin’s trial beyond the 70-day speedy trial window due to court congestion was not clearly erroneous.


Opinions Nov. 14, 2013

November 14, 2013
Indiana Court of Appeals
Darliss Wert and Gary Wert v. Meridian Security Insurance Company
Civil tort. Reverses summary judgment in favor of the insurance company on the Werts’ underinsured-motorist claim. Provisions in the insurance contract, when read together, make it unclear when the Werts should have filed a lawsuit to preserve their claim and may completely foreclose their ability to file a lawsuit.

Opinions Nov. 13, 2013

November 13, 2013
Indiana Supreme Court
Julie Kitchell v. Ted Franklin, as the Mayor of the City of Logansport, and the Common Council of the City of Logansport
Civil plenary. Affirms trial court dismissal of a suit challenging the city’s planned public-private partnership to convert a coal-fired power plant to generate electricity by burning refuse. Justices held that the Indiana Public-Private Agreements statute does not require a local legislative body to adopt an enabling statute before it may issue requests for proposals or begin contract negotiations.

Opinions Nov. 12, 2013

November 12, 2013
Indiana Court of Appeals
James Edward Banks, Jr. v. State of Indiana (NFP)
Criminal. Affirms denial of Banks’ motion to correct erroneous sentence.

Opinions Nov. 11, 2013

November 11, 2013
7th Circuit Court of Appeals
William D. Grote III et al, v. Kathleen Sebelius, et al.
Reverses and remands to the District Court for the Southern District of Indiana with orders to grant an injunction prohibiting enforcement of the “contraception mandate” of the Patient Protection and Affordable Care Act. The majority held that Grote Industries made a strong case for relief from the mandate under the Religious Freedom Restoration Act, but Judge Ilana Rovner warned that the panel was rewriting the law to extend rights of religion to a for-profit, secular corporation, thereby opening a host of federal regulations to religious challenges from corporation owners.

Opinions Nov. 8, 2013

November 8, 2013
Indiana Court of Appeals
Hitesh Seth v. Midland Funding, LLC, as an Assignee of Columbus Bank and Trust as Issuer of Aspire Visa
Civil collection. Reverses summary judgment in favor of Midland Funding LLC on Midland’s complaint against Seth for nonpayment of credit card debt. Midland has failed as a matter of law to designate evidence to make a prima facie case that it is entitled to summary judgment on its complaint. Accordingly, the burden of proof did not shift to Seth to show that there exist questions of material fact precluding summary judgment.

Opinions Nov. 7, 2013

November 7, 2013
Indiana Court of Appeals
Debra Minott, Faith Laird, Patti Bailey v. Lee Alan Bryant Health Care Facilities, Inc.; Parkview Residential Care Center, L.L.C.; Parke County Residential Care Center, L.L.C., et al.
Civil plenary. Reverses denial of state’s request for restitution for damages paid. The Nov. 8 order was not a final judgment because it did not address the issue of restitution. Holds the law firms and creditor banks in this case are judgment creditors. Remands for further proceedings.

Opinions Nov. 6, 2013

November 6, 2013
Indiana Court of Appeals
Kimberly Kubina v. State of Indiana
Criminal. Affirms 35-year sentence following guilty plea to Class A felony neglect of a dependent. The trial court did not abuse its discretion in finding Kubina was in a position of trust with her stepson.

Opinions Nov. 5, 2013

November 5, 2013
Indiana Supreme Court
Jason Wilson v. Kelly (Wilson) Myers
Domestic relation. Reverses modification of custody. Finds an abuse of discretion in the way this modification was carried out and ordered as it never mentioned whether the modification was in the best interest of the children or noted any substantial change in any of the factors enumerated in I.C. 31-17-2-8. Orders an evidentiary hearing and inquiry into in-camera interviews. Since the two children have already been pulled from their Indiana school system and are attending school in Michigan, this status quo should continue until further order of the court as to minimize further disruption to the kids.

Opinions Nov. 4, 2013

November 4, 2013
7th Circuit Court of Appeals
Christian Serino v. Alec Hensley and City of Oakland City, Indiana
U.S. District Court, Southern District of Indiana, Evansville Division, Chief Judge Richard Young.
Civil. Affirms dismissal of Serino’s lawsuit for federal claims of false arrest and malicious prosecution and Indiana tort claims for false arrest, malicious prosecution and intentional infliction of emotional distress. Serino’s claims are time-barred; his federal malicious prosecution claim failed to state a constitutional violation independent of his time-barred false arrest claim, and his state law claims for malicious prosecution and IIED were barred by the defendants’ immunity under the Indiana Tort Claims Act.

Opinions Nov. 1, 2013

November 1, 2013
Tax Court
Virginia Garwood v. Indiana Dept. of State Revenue.
Denies state motion to dismiss Garwood’s claim that she is entitled to a refund of $122,684, the value of animals and property seized from an alleged ‘puppy mill’ through the use of jeopardy tax warrants that were voided by prior court rulings. The court ruled it has jurisdiction because the matter arises under tax law and that Garwood properly filed claims with the Department of State Revenue that led to the litigation.

Opinions Oct. 31, 2013

October 31, 2013
7th Circuit Court of Appeals
Mark Suesz, individually and on behalf of a class v. Med-1 Solutions LLC
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge William T. Lawrence.
Civil. Affirms dismissal of Suesz’s complaint that Med-1 Solutions violated the Fair Debt Collection Practices Act after obtaining a favorable judgment against him in Marion County Small Claims Court in Pike Township because he neither lived nor signed the contract in that township. Small claim courts are not judicial districts for purposes of the FDCPA. Judge Posner dissents.

Opinions Oct. 30, 2013

October 30, 2013
Indiana Court of Appeals
Eric Danner v. State of Indiana (NFP)
Post conviction. Affirms denial of petition for post-conviction relief.

Opinions Oct. 29, 2013

October 29, 2013
Shawn Telligman v. Review Board of the Indiana Department of Workforce Development and Indiana Department of Workforce Development Unemployment Insurance Claims Adjudication
Agency action. Affirms ruling in favor of the IDWD’s claim that Telligman failed to disclose or falsified information to IDWD in order to receive unemployment benefits. The ALJ and review board did not err in finding that Telligman knowingly failed to disclose or falsified facts that would disqualify him from receiving benefits, reduce his benefits, or render him ineligible for benefits or extended benefits, and in finding him liable to repay IDWD the benefit overpayment amounts together with applicable penalties and interest. The board did not abuse its discretion in denying his request to submit additional evidence.

Opinions Oct. 28, 2013

October 28, 2013
Indiana Court of Appeals
Chaunsey L. Fox v. State of Indiana
Criminal. Affirms felony murder conviction. The trial court did not abuse its discretion by denying Fox’s motion to dismiss and allowing the jury to determine the issue of credibility and answer the question of who was telling the truth.

Opinions Oct. 25, 2013

October 25, 2013
Indiana Court of Appeals
Michael A. Lane v. State of Indiana
Criminal. Affirms convictions of murder, Class B felony conspiracy to commit dealing in a schedule II controlled substance, and two counts of Class C felony criminal recklessness. Holds an instruction on reckless homicide was not warranted and that brief testimonial hearsay evidence admitted was harmless beyond a reasonable doubt.

Opinions Oct. 24, 2013

October 24, 2013
Indiana Court of Appeals
Gregory Dickens v. State of Indiana
Post conviction. Affirms denial of petition for post-conviction relief seeking new trial for murder of a police officer. Dickens was not entitled to a new trial in light of either newly discovered evidence or an alleged Brady violation. He also did not receive ineffective assistance of trial counsel.

Opinions Oct. 23, 2013

October 23, 2013
Indiana Court of Appeals
Phillip Griffin v. State of Indiana
Criminal. Reverses conviction of Class A misdemeanor resisting law enforcement as the police officer lacked reasonable suspicion to detain Griffin for the purpose of investigating a possible crime. Affirms conviction of Class A misdemeanor battering an officer while being placed under arrest because there is sufficient evidence Griffin was not acting in self-defense. Also reverses order to perform community services and remands to address the question of payment of costs. Judge Mathias concurs in separate opinion; Judge Bailey concurs in part and dissents in part.

Opinions Oct. 22, 2013

October 22, 2013
7th Circuit Court of Appeals
Billy Julian v. Sam Hanna, et. al.
Criminal. Reverses District Court grant of summary judgment to defendant parties in a malicious prosecution case and remands for further proceedings, holding that Billy Julian’s claim was improperly dismissed as untimely. The panel held that the two-year window for the claim did not begin until November 2010, when charges against him were dismissed, and therefore filing of the claim in July 2011 was timely.

Opinions Oct. 18, 2013

October 18, 2013
Indiana Court of Appeals
Floyd Weddle v. State of Indiana
Criminal. Affirms on rehearing that convictions for possession of methamphetamine and manufacturing methamphetamine were not double jeopardy, and finding that the jury could have reasonably concluded that Weddle was in possession of methamphetamine and was in the process of manufacturing an additional amount of the drug.

Opinions Oct. 17, 2013

October 17, 2013
Indiana Court of Appeals
Timothy L. Hyser v. State of Indiana
Criminal. Reverses convictions of Class A felony and Class C felony child molesting. The exclusion of the evidence Hyser wished to present deprived him of a meaningful opportunity to present a complete defense. The state is not barred from retrying Hyser.

Opinions Oct. 16, 2013

October 16, 2013
Jennifer Nelson
Indiana Court of Appeals
Steven R. Ott v. State of Indiana
Criminal.  Affirms denial of Ott’s motion to correct error following the trial
court’s order denying his “Verified Motion to Convert Class D Felony Conviction to a Class A Misdemeanor Pursuant to I.C. 35-50-2-7(c).”

Opinions Oct. 15, 2013

October 15, 2013
Indiana Court of Appeals
Judith (Lund) Pherson v. Michael Lund
Domestic relation. Affirms denial of Pherson’s motion to correct error, which challenged a post-dissolution order in response to a motion by Lund for clarification of a pension-fund provision of a property settlement agreement incorporated into a divorce decree. The pension contributions in the 18 ½ years since the dissolution were after-acquired property beyond the scope of the settlement agreement to divide.

Opinions Oct. 14, 2013

October 14, 2013
7th Circuit Court of Appeals
United States of America v. Richard Brown
U.S. District Court, Southern District of Indiana, Evansville Division. Chief Judge Richard L. Young.
Criminal. Affirms 60-month total sentence following guilty plea to one count each of wire fraud, mail fraud and tax fraud. The sentencing beyond the advisory guidelines sentencing range is reasonable when considered in light of the court’s oral pronouncement of the sentence.

Opinions Oct. 11, 2013

October 11, 2013
Indiana Court of Appeals
Medtronic, Inc., v. Lori A. Malander, Individually and as Personal Representative of the Estate of David M. Malander, Sr., Deceased and Kathleen Malander
Civil tort. Affirms denial of Medtronic’s motion for summary judgment in an action against it by Lori Malander, individually and as the personal representative of the Estate of David Malander, deceased, and Kathleen Malander. The Medical Device Amendments to the Federal Food, Drug, and Cosmetics Act does not preempt the claim against Medtronic and genuine issues of material fact exist regarding whether Medtronic assumed a duty to David Malander.

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  1. Joe, you might want to do some reading on the fate of Hoosier whistleblowers before you get your expectations raised up.

  2. I had a hospital and dcs caseworker falsify reports that my child was born with drugs in her system. I filed a complaint with the Indiana department of health....and they found that the hospital falsified drug screens in their investigation. Then I filed a complaint with human health services in Washington DC...dcs drug Testing is unregulated and is indicating false positives...they are currently being investigated by human health services. Then I located an attorney and signed contracts one month ago to sue dcs and Anderson community hospital. Once the suit is filed I am taking out a loan against the suit and paying a law firm to file a writ of mandamus challenging the courts jurisdiction to invoke chins case against me. I also forwarded evidence to a u.s. senator who contacted hhs to push an investigation faster. Once the lawsuit is filed local news stations will be running coverage on the situation. Easy day....people will be losing their jobs soon...and judge pancol...who has attempted to cover up what has happened will also be in trouble. The drug testing is a kids for cash and federal funding situation.

  3. (A)ll (C)riminals (L)ove (U)s is up to their old, "If it's honorable and pro-American, we're against it," nonsense. I'm not a big Pence fan but at least he's showing his patriotism which is something the left won't do.

  4. While if true this auto dealer should be held liable, where was the BMV in all of this? How is it that the dealer was able to get "clean" titles to these vehicles in order to sell them to unsuspecting consumers?

  5. He has refused his Assent to Laws, the most wholesome and necessary for the public good. He has forbidden his Governors to pass Laws of immediate and pressing importance, He has erected a multitude of New Offices, and sent hither swarms of Officers to harrass our people, and eat out their substance. He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation: For imposing Taxes on us without our Consent: He is at this time transporting large Armies of foreign Mercenaries to compleat the works of death, desolation and tyranny, already begun with circumstances of Cruelty & perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation.. He has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless [ ] Savages, whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions. GOD BLESS THE GOVERNORS RESISTING! Count on the gutless judiciary to tie our children down and facilitate the swords being drawn across their throats. Wake Up America ...