Opinions

Opinions Aug. 7, 2012

August 7, 2012
Indiana Court of Appeals
Warrick County, Indiana, A Political Subdivision, by and through its County Commissioners, Nova Conner, Don Williams, and Phillip Baxter, and Cincinnati Insurance Co. v. William Hill and Stacy Hill
87A01-1201-PL-8
Civil plenary. Affirms denial of summary judgment for Warrick County in an action brought against it and Cincinnati Insurance Co. by William and Stacy Hill. Agrees with trial court conclusion that the Hills filed their notice under the Indiana Tort Claims Act within 180 days and that the Hills did not discover the source of the damage to their home until 2007, so the claims are within the six-year statute of limitations on actions for injury to property other than personal property.
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Opinions Aug. 6, 2012

August 6, 2012
Indiana Court of Appeals
Donald Gregory Huls v. State of Indiana

64A04-1110-CR-552
Criminal. Affirms convictions of criminal recklessness, one as a Class D felony and one as a Class C felony. Affirms denial of motion for mistrial because the prosecutor’s isolated comment did not have a probable persuasive effect on the jury and did not place Huls in grave peril. His proposed jury instructions incorrectly stated the law on self-defense or the evidence did not support giving them.
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Opinions Aug. 3, 2012

August 3, 2012
7th Circuit Court of Appeals
BKCAP, LLC, GRAYCAP, LLC, AND SWCAP, LLC v. Captec Franchise Trust 2000-1
11-2928, 11-3378
U.S. District Court, Northern District of Indiana, South Bend Division. Magistrate Judge Roger B. Cosbey.
Civil. Affirms ruling in favor of the borrowers’ interpretation of the prepayment premium requirements in 12 loans involving restaurants and award of prejudgment interest to the borrowers. The borrowers’ position was supported by the evidence presented at trial, and the lender is not entitled to attorney fees.
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Opinions Aug. 2, 2012

August 2, 2012
Indiana Court of Appeals
N.B. v. State of Indiana
55A01-1111-JV-574
Juvenile. Affirms determination that N.B. committed the delinquent act of reckless homicide, a Class C felony if committed by an adult. N.B. contended that the juvenile court abused its discretion in admitting his statement to the investigating officer at the evidentiary hearing. Finds the procedural safeguards set forth in the juvenile waiver statute were met.
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Opinions Aug. 1, 2012

August 1, 2012
Indiana Court of Appeals
Justin A. Staton v. State of Indiana (NFP)
48A02-1112-CR-1192
Criminal. Affirms revocation of probation.
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Opinions July 31, 2012

July 31, 2012
7th Circuit Court of Appeals
Carol Aschermann v. Aetna Life Insurance Company, et al.
12-1230
U.S. District Court, Southern District of Indiana, Indianapolis Division. Judge Larry J. McKinney.
Civil. Affirms the District Court judgment in favor of the insurers, in which an insurer stopped paying a worker’s disability benefits claim, holding that the decision was not arbitrary or capricious.
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Opinions July 30, 2012

July 30, 2012
7th Circuit Court of Appeals
Winforge, Inc., et al., v. Coachmen Industries, Inc., et al.
10-3178
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge Sarah Evans Barker.
Civil. Affirms trial court judgment for defendants, agreeing that the parties had never entered into a final, enforceable contract.
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Opinions July 27, 201

July 27, 2012
7th Circuit Court of Appeals
Leonard Lapsley, et al. v. Xtek Inc.
11-3313
U.S. District Court, Northern District of Indiana, Hammond Division. Judge Joseph S. Van Bokkelen.
Civil. Affirms denial of Xtek’s Daubert motion that sought to bar Dr. Gary Hutter from offering his expert opinions, which were essential to Lapsley’s case that a design defect in Xtek’s equipment was the cause of his accident. In this case, the District Court’s stated analysis of the proposed testimony was brief, but it was also directly to the point and was sufficient to trigger deferential review on appeal. The District Court did not misapply Daubert.
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Opinions July 26, 2012

July 26, 2012
Indiana Supreme Court
Michael J. Lock v. State of Indiana
35S04-1110-CR-622
Criminal. Affirms Lock’s conviction and sentence for Class D felony operating a motor vehicle as a habitual traffic violator and the revocation of his driving privileges for life. I.C. 9-30-10-16 is not unconstitutionally vague and based on the stipulation that Lock’s Zuma was traveling 43 MPH, a reasonable fact-finder could find beyond a reasonable doubt that the Zuma had a maximum design speed in excess of 25 MPH. Justice Rucker dissents.
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Opinions July 25, 2012

July 25, 2012
Indiana Supreme Court
Kenneth Dwayne Vaughn v. State of Indiana
45S05-1112-CR-684
Criminal. Affirms decision not to grant a mistrial. Vaughn did not suffer actual harm from the bailiff restraining him by covering Vaughn’s mouth in front of the jury so he would stop taking.
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Opinions July 24, 2012

July 24, 2012
7th Circuit Court of Appeals
Jeffrey D. Kirkland v. United States of America
11-2507
U.S. District Court, Northern District of Indiana, South Bend Division, Judge Jon E. DeGuilio.
Civil. Reverses District Court’s conclusion that an enhancement of Kirkland’s sentence under the Armed Criminal Career Act was still appropriate based on his remaining three convictions for violent felonies. Court may only consider Shepard-approved sources in determining whether prior offenses occurred on separate occasions under 18 U.S.C. Section 924(e)(1). Based on the record, the appellate court can’t conclude that Kirkland’s robbery and burglary offenses – which were on the same day – occurred on separate occasions. Remands for resentencing.
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Opinions July 23, 2012

July 23, 2012
7th Circuit Court of Appeals
Mark McCleskey, trustee, et al. v. DLF Construction Inc., an Indiana corporation
11-1826
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge William T. Lawrence.
Civil. Affirms finding that the construction company, as employer, had to contribute to the funds for all hours worked by members of the union, not just bargaining unit work. The collective bargaining agreements are clear that DLF is required to make contributions to the pension and health and welfare funds for each hour worked by a covered employee.
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Opinions July 20, 2012

July 20, 2012
7th Circuit Court of Appeals
Bradley M. Shideler v. Michael J. Astrue, commissioner of Social Security
11-3284
U.S. District Court, Northern District of Indiana, South Bend Division, Judge Robert L.
Miller Jr.
Civil. Affirms denial of application for Social Security Disability Insurance benefits. The administrative law judge adequately evaluated Shideler’s credibility. Whatever his current condition is, the ALJ’s decision finding that he was not disabled as of March 31, 2000, is supported by substantial evidence.
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Opinions July 19, 2012

July 19, 2012
Indiana Court of Appeals
Bobby A. Harlan v. State of Indiana
84A01-1110-CR-474
Criminal. Affirms sentence imposed for two convictions of Class B felony child molesting and order that Harlan register as a sexually violent predator. The order requiring Harlan register as a SVP does not violate the ex post facto clause of the Indiana Constitution, the trial court did not abuse its discretion in the course of identifying aggravating and mitigating factors at sentencing, and his sentence is reasonable.
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Opinions July 18, 2012

July 18, 2012
Indiana Court of Appeals
Annette Pittman v. State of Indiana
49A02-1112-CR-1132
Criminal. Affirms conviction of Class B misdemeanor public intoxication. I.C. 12-23-15-2 did not require the arresting officer, or other law enforcement personnel elsewhere, to perform an evaluation so thorough as to eliminate all other possible causes for each of the symptoms of alcoholic intoxication that Pittman exhibited.
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Indiana Court Decisions June 28 - July 11, 2012

July 18, 2012
IL Staff
Read appellate court opinions from June 28 to Julyd 11, 2012.
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Opinions July 17, 2012

July 17, 2012
Indiana Court of Appeals
Darrell Larue Brown v. State of Indiana
10A04-1109-CR-551
Criminal. Affirms Brown’s sentence following guilty plea to two counts of Class B felony child molesting. Brown waived his right to appeal.
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Opinions July 16, 2012

July 16, 2012
Indiana Court of Appeals
M & M Investment Group, LLC v. Ahlemeyer Farms, Inc. and Monroe Bank
03A04-1112-CC-639
Civil collection. Affirms trial court order denying M&M’s petition for a tax deed for property of which Monroe Bank was the mortgagee, holding that the court properly denied the petition. Finds that the Indiana pre-tax-sale notice statute violates the Due Process Clause of the 14th Amendment.
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Opinions July 13, 2012

July 13, 2012
Indiana Court of Appeals
John W. Schoettmer and Karen Schoettmer v. Jolene C. Wright and South Central Community Action Program, Inc.
49A04-1108-CT-406
Civil tort. Affirms summary judgment in favor of Wright and South Central Community Action Program Inc., finding that the plaintiffs did not timely file notice as governed by the Indiana Tort Claims Act.
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Opinions July 12, 2012

July 12, 2012
7th Circuit Court of Appeals
Carlene M. Craig, et al. v. FedEx Ground Package System Inc.
10-3115
U.S. District Court, Northern District of Indiana, South Bend Division, Judge Robert L. Miller Jr.
Multidistrict litigation. Certifies two questions to the Kansas Supreme Court in a suit that was based on the Employee Retirement Income Security act and Kansas law regarding whether FedEx drivers are employees or independent contractors. Craig is the “lead” case in a nationwide class action.
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Opinions July 11, 2012

July 11, 2012
7th Circuit Court of Appeals
Michael Dean Overstreet v. Bill Wilson, superintendent, Indiana State Prison
11-2276
U.S. District Court, Northern District of Indiana, South Bend Division, Chief Judge Philip P. Simon.
Civil. Finds Overstreet, who is sentenced to death, did not receive constitutionally ineffective assistance of counsel relating to the handling of an alleged plea bargain, the handling of spectators in the courtroom, and relating to the sentencing proceeding. Judge Wood dissents regarding the attorneys’ handling of the sentencing proceeding and would grant the petition for writ of habeas corpus limited to the sentence imposed.
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Opinions July 10, 2012

July 10, 2012
Indiana Court of Appeals
In the Matter of the Adoption of N.W.R.; M.R. v. R.B. and R.B., and Indiana Dept. of Child Services
36A01-1109-AD-407
Adoption. Reverses the trial court’s grant of a petition to adopt to foster parents R.B. and R.B., and remands to the trial court with instructions to reconsider evidence after DCS completes investigation of aunt M.R. as a potential adoptive replacement. The court held that the trial court erred in denying DCS’ motion to withdraw consent for the petition after discovering it failed to conduct a complete adoptive placement investigation.
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Opinions July 9, 2012

July 9, 2012
Indiana Court of Appeals
Derrick Baker v. State of Indiana (NFP)
48A02-1110-CR-929
Criminal. Affirms trial court conviction of dealing cocaine as a Class B felony.

 
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Opinions July 6, 2012

July 6, 2012
7th Circuit Court of Appeals
U.S. v. Justin Cephus, Jovan Stewart, and Stanton L. Cephus
10-3838, 10-3840, 11-1098
Criminal. Affirms in a case involving conspiracy to entice underage girls to engage in prostitution and transport them across state lines the life sentences without parole of multiple convictions for Justin and Stanton Cephus. The order remands to the trial court to enable the judge to reconcile a discrepancy in Stewart’s sentence of 324 months in federal prison. The judge said Stewart’s sentences were to be served consecutively; the written order indicates the sentences are concurrent.
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Opinions July 5, 2012

July 5, 2012
7th Circuit Court of Appeals
Nipponkoa Insurance Company, Ltd. v. Atlas Van Lines Inc.
3:09-CV-168
Civil plenary/contract. Reverses the U.S. District Court for the Southern District of Indiana’s summary judgment for defendant and remands for further proceedings, finding summary judgment inappropriate pending further determination of the relationship between plaintiffs, defendant and ancillary parties involved in a shipping loss.  
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  1. The $320,000 is the amount the school spent in litigating two lawsuits: One to release the report involving John Trimble (as noted in the story above) and one defending the discrimination lawsuit. The story above does not mention the amount spent to defend the discrimination suit, that's why the numbers don't match. Thanks for reading.

  2. $160k? Yesterday the figure was $320k. Which is it Indiana Lawyer. And even more interesting, which well connected law firm got the (I am guessing) $320k, six time was the fired chancellor received. LOL. (From yesterday's story, which I guess we were expected to forget overnight ... "According to records obtained by the Journal & Courier, Purdue spent $161,812, beginning in July 2012, in a state open records lawsuit and $168,312, beginning in April 2013, for defense in a federal lawsuit. Much of those fees were spent battling court orders to release an independent investigation by attorney John Trimble that found Purdue could have handled the forced retirement better")

  3. The numbers are harsh; 66 - 24 in the House, 40 - 10 in the Senate. And it is an idea pushed by the Democrats. Dead end? Ummm not necessarily. Just need to go big rather than go home. Nuclear option. Give it to the federal courts, the federal courts will ram this down our throats. Like that other invented right of the modern age, feticide. Rights too precious to be held up by 2000 years of civilization hang in the balance. Onward!

  4. I'm currently seeing someone who has a charge of child pornography possession, he didn't know he had it because it was attached to a music video file he downloaded when he was 19/20 yrs old and fought it for years until he couldn't handle it and plead guilty of possession. He's been convicted in Illinois and now lives in Indiana. Wouldn't it be better to give them a chance to prove to the community and their families that they pose no threat? He's so young and now because he was being a kid and downloaded music at a younger age, he has to pay for it the rest of his life? It's unfair, he can't live a normal life, and has to live in fear of what people can say and do to him because of something that happened 10 years ago? No one deserves that, and no one deserves to be labeled for one mistake, he got labeled even though there was no intent to obtain and use the said content. It makes me so sad to see someone I love go through this and it makes me holds me back a lot because I don't know how people around me will accept him...second chances should be given to those under the age of 21 at least so they can be given a chance to live a normal life as a productive member of society.

  5. It's just an ill considered remark. The Sup Ct is inherently political, as it is a core part of government, and Marbury V Madison guaranteed that it would become ever more so Supremely thus. So her remark is meaningless and she just should have not made it.... what she could have said is that Congress is a bunch of lazys and cowards who wont do their jobs so the hard work of making laws clear, oftentimes stops with the Sups sorting things out that could have been resolved by more competent legislation. That would have been a more worthwhile remark and maybe would have had some relevance to what voters do, since voters cant affect who gets appointed to the supremely un-democratic art III courts.

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