Opinions

Opinions Feb. 20, 2013

February 20, 2013
7th Circuit Court of Appeals
Columbus Regional Hospital v. Federal Emergency Management Agency
12-2007
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge Sarah Evans Barker.
Civil. Affirms summary judgment in favor of FEMA on the hospital’s lawsuit seeking $20 more in federal aid following a flood in 2006. Holds the District Court is the proper venue for the hospital’s lawsuit. Rejects the hospital’s claims that it is entitled to the cost of new equipment instead of cost less depreciation and that FEMA should not have deducted from the aid the $25 million it received from insurance.

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Opinions Feb. 19, 2013

February 19, 2013
Indiana Supreme Court
Ronald B. Hawkins v. State of Indiana
20S03-1208-DR-499
Domestic relation. Vacates convictions of two counts of Class C felony nonsupport of a dependent where Hawkins was tried in absentia. The record indicates that Hawkins’ failure to appear at trial did not constitute a waiver of his right to counsel. Remands for a new trial.

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Opinions Feb. 18, 2013

February 18, 2013
Indiana Court of Appeals
Jim A. Edsall v. State of Indiana
57A03-1205-CR-240
Criminal. Affirms sentence following guilty plea to five counts of Class A felony delivery of methamphetamine and one count of Class A felony conspiracy to manufacture meth. There is no indication that the trial court considered alleged inaccurate and irrelevant testimony when sentencing him, and his sentence is appropriate based on his character and nature of his offenses. Reverses order of restitution as part of Edsall’s sentence because the trial court had not authority to order restitution in this case.
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Opinions Feb. 15, 2013

February 15, 2013
Indiana Court of Appeals
South Shore Baseball, LLC d/b/a Gary South Shore Railcats, and Northwest Sports Venture, LLC v. Juanita DeJesus
45A03-1205-CT-222
Civil tort. Reverses denial of summary judgment for South Shore Baseball on DeJesus’ lawsuit filed after she was hit by a foul ball at a game. As a matter of law, the appellants can’t be held liable for her injuries. Remands with instructions for the court to issue summary judgment in favor of South Shore Baseball.
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Opinions Feb. 14, 2013

February 14, 2013
7th Circuit Court of Appeals
In the matter of: Castleton Plaza LP; Appeal of: El-SNPR Notes Holdings LLC
12-2639
U.S. Bankruptcy Court, Southern District of Indiana, Indianapolis Division, Judge Basil H. Lorch III.
Bankruptcy. Holds an equity investor cannot evade the competitive process by arranging for the new value to be contributed by (and the new equity to go to) an “insider” as 11 U.S.C. Section 101(31) defines that term. Competition is essential whenever a plan of reorganization leaves an objecting creditor unpaid yet distributes an equity interest to an insider.
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Opinions Feb. 13, 2013

February 13, 2013
7th Circuit Court of Appeals
United States of America v. Jesus Uribe
11-3590
U.S. District Court, Southern District of Indiana, Terre Haute Division, Judge Jane Magnus-Stinson.
Criminal. Affirms decision granting Uribe’s motion to suppress heroin found after traffic stop. The government failed to show that the officer had reasonable suspicion to stop Uribe’s vehicle to investigate why its registration was tied to a white Nissan whereas the Nissan Uribe was driving was blue. Investigatory stops based on color discrepancies alone are insufficient to give rise to reasonable suspicion.
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Opinions Feb. 11, 2013

February 11, 2013
Indiana Court of Appeals
Michael Gray v. State of Indiana
49A02-1205-CR-352
Criminal. Affirms conviction and sentence of Class D felony possession of cocaine, holding that the court erred in failing to allow a defendant to play a tape of an officer’s deposition that contained inconsistent statements, but that the error was harmless because other evidence at trial strongly pointed to Gray’s guilt.
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Opinions Feb. 8, 2013

February 8, 2013
Indiana Court of Appeals
Billy Russell v. State of Indiana
49A04-1203-CR-148
Criminal. Affirms conviction and sentence on charges of murder and Class B felony possession of a firearm by a serious violent felon. The panel found that the trial court did not abuse its discretion in refusing to completely bifurcate the trial of the SVF charge from the murder charge or in refusing to tender Russell’s self-defense jury instruction. The court also determined the 85-year sentence was not inappropriate.

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Opinions Feb. 7, 2013

February 7, 2013
7th Circuit Court of Appeals
Jurijus Kadamovas v. Michael Stevens, et al.
12-2669
U.S. District Court, Southern District of Indiana, Terre Haute Division, Judge William T. Lawrence.
Civil. Reverses dismissal of prisoner Kadamovas’ lawsuit against prison officials and other inmates for unintelligibility. The suit is actually written clearly and not 99 pages as the judge believed, but just 28 pages. Remands for further consideration.
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Opinions Feb. 6, 2013

February 6, 2013
Indiana Court of Appeals
Walter E. Smith, Jr. v. State of Indiana
84A04-1112-CR-637
Criminal. Affirms conviction of Class A felony dealing in cocaine. The trial court did not abuse its discretion in refusing to use Smith’s tendered instruction because the substance of that instruction was covered by instructions given by the court nor in refusing to discharge Smith pursuant to Criminal Rule 4(B). The trial court also did not abuse its discretion in admitting at trial the cocaine evidence seized pursuant to a valid search warrant.

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Opinions Feb. 5, 2013

February 5, 2013
Indiana Court of Appeals
Ignacio Perez v. State of Indiana
20A03-1206-CR-247
Criminal. Affirms denial of motion to suppress. Finds the detention, arrest and search incident to the arrest were reasonable and did not violate Perez’s right to be free from unreasonable search and seizure under the Fourth Amendment. The dog sniff outside his residence was reasonable and there was no violation of his rights under the Indiana Constitution. Remands for retrial.
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Opinions Feb. 4, 2013

February 4, 2013
Indiana Court of Appeals
Connie S. Landers v. Wabash Center, Inc.
79A04-1204-CT-191
Civil tort. Affirms judgment for Wabash Center Inc. in its lawsuit against Landers for the return of money her ex-husband stole from his employer Wabash and gave to her during and after their marriage. The court ordered she pay more than $1.037 million and granted Wabash an equitable lien on her home. Wabash’s lawsuit is not barred by the statute of limitations and the ruling is supported by sufficient evidence.
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Opinions Feb. 1, 2013

February 1, 2013
7th Circuit Court of Appeals
Eugene Devbrow v. Dr. Eke Kalu, et al.
12-2467
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge Larry J. McKinney.
Civil. Reverses judgment for the defendants on prisoner Devbrow’s suit that two prison doctors and a prison nurse were deliberately indifferent to his serious medical needs in violation of the Eighth Amendment. The statute of limitations for a Section 1983 deliberate-indifference claim brought to redress a medical injury doesn’t begin to run until the plaintiff knows of his injury and its cause, so his suit is timely.

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Opinions Jan. 31, 2013

January 31, 2013
Indiana Court of Appeals
Mark S. Weinberger, M.D., et al. v. Gloria Gill
45A05-1203-CT-107
Civil tort. Affirms award of $150,000 in damages to Gloria Gill following her medical malpractice action. Concludes that the testimony concerning Weinberger’s odd behavior before his flight from the country was relevant evidence because it established an inference of consciousness of guilt.

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Opinions Jan. 30, 2013

January 30, 2013
Indiana Court of Appeals
Peter F. Amaya v. D. Craig Brater, M.D., in his capacity as Dean and Director of Indiana University School of Medicine; The Board of Trustees of Indiana University; et al.
49A04-1204-PL-208
Civil plenary. Affirms summary judgment in favor of the medical school on Amaya’s claims including breach of contract and breach of good faith and fair dealing after he was dismissed from the school. Amaya didn’t designate evidence that the school’s decision was in bad faith, arbitrary or capricious.

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Opinions Jan. 29, 2013

January 29, 2013
Indiana Court of Appeals
John Alden v. State of Indiana
30A01-1209-CR-412
Criminal. Affirmed trial court’s denial of petition to reduce Alden’s Class D felony conviction for operating while intoxicated to a Class A misdemeanor. In a review of the state statute covering the sentencing range for Class D felonies, the COA found the statute contained the word “may” instead of “shall” which gives the courts the freedom to deny petitions.

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Opinions Jan. 25, 2013

January 25, 2013
Indiana Court of Appeals
David Delagrange v. State of Indiana
49A04-1203-CR-144
Criminal. Reversed conviction of four counts of Class C felony attempted child exploitation and remanded for further proceedings. Ruled Delagrange’s act of secretly photographing minor girls’ underwear did not meet the Indiana statute’s definition of “child exploitation” because the girls did not intentionally expose themselves for the purpose of satisfying or arousing sexual desires of another.
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Opinions Jan. 24, 2013

January 24, 2013
Indiana Court of Appeals
Danny Boling v. State of Indiana
20A04-1205-CR-237
Criminal. Affirms conviction of Class A felony attempted child molesting based on the evidence presented at trial and 45-year sentence. Finds the trial court erred in determining Boling is a credit restricted felon because a person convicted of attempted child molesting isn’t a credit restricted felon under I.C. 35-31.5-2-72(1). Remands with instructions to correct Boling’s record to remove that designation.
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Opinions Jan. 23, 2013

January 23, 2013
7th Circuit Court of Appeals
John Doe v. Prosecutor, Marion County, Indiana
12-2512
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge Tanya Walton Pratt.
Civil. Reverses District Court decision to uphold statute prohibiting most registered sex offenders from using certain social networking and holds the law as drafted is unconstitutional. Though content neutral, the law is not narrowly tailored to serve the state’s interest. It broadly prohibits substantial protected speech rather specifically targeting the evil of improper communications to minors. Remands with instructions to enter judgment in favor of Doe and issue the injunction.
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Opinions Jan. 22, 2013

January 22, 2013
Indiana Court of Appeals
Lula L. Jenkins, et al. v. South Bend Community School Corp.
71A03-1206-PL-260
Civil plenary.  Reverses summary judgment for South Bend Community School Corp. on Jenkins’ action seeking an independent determination of whether she was discharged for just cause from her position as a bus driver. The advisory nature of the arbitrator’s award allows the non-prevailing party, here SBCSC, to reject the award, thus triggering judicial review, either under the Uniform Arbitration Act’s provisions or for a determination whether the facts found by the arbitrator support the award. Remands for further proceedings.
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Opinions Jan. 18, 2013

January 18, 2013
7th Circuit Court of Appeals
Linda K. Roddy v. Michael J. Astrue, Commissioner of Social Security
12-1682
U.S. District Court, Southern District of Indiana, New Albany Division, Judge Tanya Walton Pratt.
Civil. Vacates judgment of the District Court and remands Roddy’s case for disability insurance benefits to the Social Security Administration for further proceedings. Finds the administrative law judge made a number of errors in his consideration of the record, in which he denied her benefits.
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Opinions Jan. 17, 2013

January 17, 2013
Indiana Court of Appeals
Daniel Brewington v. State of Indiana
15A01-1110-CR-550
Criminal. Reverses convictions and sentences for intimidation of Dr. Edward Connor and intimidation of Heidi Humphrey and remands with instructions to vacate, which does not alter Daniel Brewington’s aggregate sentence. Affirms conviction for intimidation of Judge James Humphrey and for attempted obstruction of justice relating to Connor. Affirms in all other respects.
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Opinions Jan. 16, 2013

January 16, 2013
Indiana Court of Appeals
Nick Domaschko and Edwina Domaschko, and their Respective Trusts, et al. v. State of Indiana
58A01-1206-PL-261
Civil plenary. Affirms trial court’s order of immediate appropriation and appointment of appraisers. The trial court properly determined that the state, through the Indiana Department of Transportation, was entitled by law to acquire the Domaschkos’ property.
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Opinions Jan. 15, 2013

January 15, 2013
Indiana Supreme Court
Timothy W. Plank, Individually and as Personal Representative of the Estate of Debra L. Plank, Deceased v. Community Hospitals of Indiana, Inc., and State of Indiana
49S04-1203-CT-135
Civil tort. Affirms trial court denial of Timothy Plank’s request to hold an evidentiary hearing to challenge the constitutionality of the Medical Malpractice Act. Plank forfeited his opportunity to conduct such a hearing.
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Opinions Jan. 14, 2013

January 14, 2013
Indiana Court of Appeals
Deantoine M. Harris v. State of Indiana (NFP)
02A03-1204-CR-185
Criminal. Affirms conviction of Class B felony burglary and adjudication as a habitual offender.
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  1. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  3. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  4. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  5. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

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