Opinions

Opinions Dec. 9, 2013

December 9, 2013
Indiana Court of Appeals
Lagro Township and Karen Pinkerton Tatro v. George E. Bitzer and Zelma E. Bitzer
85A02-1306-PL-520
Civil plenary. Affirms summary judgment for the Bitzers on Lagro Township’s action seeking to exercise control over an area of land referred to as “the Belden Cemetery,” which is located on land owned by the Bitzers. The statute authorizing a township trustee to exercise control over cemeteries located within the township is inapplicable where the cemetery is located on land on which property taxes have been paid. And here, even though there was a genuine issue of material fact with regard to whether and to what extent the dedication of the Belden Cemetery to the public was accepted by the public through usage, there is no genuine issue of material fact with regard to the Bitzers’ payment of property taxes on the land on which the Belden Cemetery is located for decades. For this reason alone, the township’s claims of authority over the Belden Cemetery must fail.
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Opinions Dec. 6, 2013

December 6, 2013
Indiana Court of Appeals
Everett Sweet v. State of Indiana
35A02-1305-PC-451
Post conviction. Affirms denial of Sweet’s pro se petition for post-conviction relief. He argued had he not received ineffective counsel on his motion to suppress, the state’s evidence against him would have been suppressed and he would not have pleaded guilty to Class B felony dealing in methamphetamine. This is not a permissible basis to collaterally attack a guilty plea in Indiana.
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Opinions Dec. 5, 2013

December 5, 2013
Indiana Court of Appeals
Katherine Ryan v. Larry Janovsky
45A03-1304-DR-145
Domestic relation. Reverses denial of Ryan’s petition for contempt and rule to show cause after Janovsky refused to sign a proposed qualified domestic relations order. The entry of a QDRO is not time-barred.
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Opinions Dec. 4, 2013

December 4, 2013
Indiana Court of Appeals
Rick Deeter v. Indiana Farmers Mutual Insurance Company
43A04-1305-PL-229
Civil plenary. Affirms summary judgment in favor of Indiana Farmers Mutual Insurance Co. regarding Rick Deeter’s claim for insurance proceeds. Determines that when an insurance company has included an explicit exclusion in its policy to cover loss that results from an intentional act by a co-insured, the court will respect the parties’ right to contract and enforce that exclusion. The undisputed designated evidence shows that Callie Deeter purposefully and intentionally burnt down her home, and Farmers was within the scope of its contractual rights to deny the Deeters’ insurance claim in accordance with the intentional loss exclusion contained in the policy.
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Opinions Dec. 2, 2013

December 2, 2013
7th Circuit Court of Appeals
Thomas Blanchar v. Standard Insurance Co.
12-2745
Civil. Affirms District Court grant of summary judgment in favor of Standard, holding that Blanchar is not entitled to overtime compensation  because his work satisfies the requirements of the administrative employee exemption.

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Opinions Nov. 27, 2013

November 27, 2013
Indiana Court of Appeals
Diane S. Brown Bell, on behalf of herself and all others similarly situated v. The Bryant Company, Inc.
49A04-1305-PL-210
Civil plenary. Reverses dismissal of a suit seeking class action against a property management company that kept late fees paid by renters and asserted a right to do so. The court found the plaintiff likely entitled to recovery of the fees, and that at minimum the trial court erred in granting Bryant’s motion for judgment on the pleadings. Remands for proceedings, including whether class certification is appropriate.
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Opinions Nov. 26, 2013

November 26, 2013
7th Circuit Court of Appeals
Wanda Goodpaster, et al. v. City of Indianapolis, et al.
13-1629
U.S. District Court, Southern District of Indiana, Indianapolis Division, Chief Judge Richard Young.
Civil. Affirms District Court’s denial of the bar owners’ request for injunctive and declaratory relief against the enforcement of the smoking ban in Indianapolis. They cannot succeed on the merits of any of their myriad claims. The injunction the bar owners sought was thus unwarranted.
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Opinions Nov. 25, 2013

November 25, 2013
Indiana Court of Appeals
James L. Graham v. State of Indiana (NFP)
73A01-1304-CR-151
Criminal. Vacates a purported habitual offender enhancement and affirms the three-year aggregate sentence following guilty pleas to Class D felony operating a vehicle while intoxicated, Class A misdemeanor operating with suspended license and Class B misdemeanor false informing.
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Opinions Nov. 22, 2013

November 22, 2013
Indiana Supreme Court
Harold O. Fulp, Jr. v. Nancy A. Gilliland
41S01-1306-TR-426
Trust. Reverses denial of specific performance of the purchase agreement to Harold Fulp Jr. Under the terms of the trust and the Trust Code, Ruth Fulp owed her children no fiduciary duties and was free to sell her farm at less than fair market value; Harold Fulp Jr. is therefore entitled to specific performance. Concludes that Ruth Fulp did not effectively amend the trust by selling the farm.
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Opinions Nov. 21, 2013

November 21, 2013
Indiana Court of Appeals
B.R., a Minor, by his Guardian, Teresa Todd v. State of Indiana, Indiana Department of Child Services, Morgan County Office of Department of Child Services, and Adult and Child Mental Health Center
55A05-1212-CT-639
Civil tort. Reverses grant of Adult and Child Mental Health Center’s Trial Rule 12(B)(1) motion to dismiss for lack of subject matter jurisdiction. The allegations in B.R.’s complaint, i.e. that his case manager negligently placed him with the respite therapeutic foster parents and negligently failed to inform the foster parents that B.R. was an overly active child known to run from adults and escape his home, are not directly related to any medical care B.R. received from the Health Center. Furthermore, the foster care placement was not made by a health care professional. Because B.R.’s claims sound in general negligence, his claims fall outside the Medical Malpractice Act.
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Opinions Nov. 20, 2013

November 20, 2013
Indiana Court of Appeals
Clifford and Judith Ann Garrett v. Paul and Linda Spear
23A01-1303-PL-96
Civil plenary. Affirms summary judgment for the Spears on their claims of title by acquiescence and adverse possession and denial of summary judgment for the Garrets. The trial court did not err in granting summary judgment based upon the doctrine of title by acquiescence.
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Opinions Nov. 19, 2013

November 19, 2013
Indiana Supreme Court
Gersh Zavodnik v. Michela Rinaldi, et al
49S05-1311-CT-759
Civil tort. Reverses order of dismissal and remands to the trial court for further proceedings without prejudice to dismissal under Trial Rule 41(E) if warranted after further consideration.
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Opinions Nov. 18, 2013

November 18, 2013
Indiana Court of Appeals
Bart Whitesitt v. Town of Knightstown
33A04-1302-MI-72
Miscellaneous. Affirms summary judgment in favor of the town of Knightstown. Holds although Indiana Code 33-35-1-1 only allows a second- or third-class city to abolish a local town court every fourth year,  Knightstown did not violate the state statute because its town court was established in 1970 and is, therefore, exempt from the four-year restriction.
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Opinions Nov. 16, 2013

November 15, 2013
Indiana Supreme Court
Patrick Austin v. State of Indiana
20S03-1303-CR-158
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.





 
 
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Opinions Nov. 14, 2013

November 14, 2013
Indiana Court of Appeals
Darliss Wert and Gary Wert v. Meridian Security Insurance Company
15A01-1306-CT-252
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.
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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
09S00-1307-PL-476
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.
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Opinions Nov. 12, 2013

November 12, 2013
Indiana Court of Appeals
James Edward Banks, Jr. v. State of Indiana (NFP)
82A01-1301-CR-38
Criminal. Affirms denial of Banks’ motion to correct erroneous sentence.
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Opinions Nov. 11, 2013

November 11, 2013
7th Circuit Court of Appeals
William D. Grote III et al, v. Kathleen Sebelius, et al.
13-1077
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.
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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
48A05-1303-CC-110
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.
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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.
49A05-1305-PL-213
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.
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Opinions Nov. 6, 2013

November 6, 2013
Indiana Court of Appeals
Kimberly Kubina v. State of Indiana
45A03-1303-CR-100
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.
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Opinions Nov. 5, 2013

November 5, 2013
Indiana Supreme Court
Jason Wilson v. Kelly (Wilson) Myers
71S03-1305-DR-399
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.
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Opinions Nov. 4, 2013

November 4, 2013
7th Circuit Court of Appeals
Christian Serino v. Alec Hensley and City of Oakland City, Indiana
13-1058
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.
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Opinions Nov. 1, 2013

November 1, 2013
Tax Court
Virginia Garwood v. Indiana Dept. of State Revenue.
82T10-1208-TA-46
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.
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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
13-1821
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.
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  1. IF the Right to Vote is indeed a Right, then it is a RIGHT. That is the same for ALL eligible and properly registered voters. And this is, being able to cast one's vote - until the minute before the polls close in one's assigned precinct. NOT days before by absentee ballot, and NOT 9 miles from one's house (where it might be a burden to get to in time). I personally wait until the last minute to get in line. Because you never know what happens. THAT is my right, and that is Mr. Valenti's. If it is truly so horrible to let him on school grounds (exactly how many children are harmed by those required to register, on school grounds, on election day - seriously!), then move the polling place to a different location. For ALL voters in that precinct. Problem solved.

  2. "associates are becoming more mercenary. The path to partnership has become longer and more difficult so they are chasing short-term gains like high compensation." GOOD FOR THEM! HELL THERE OUGHT TO BE A UNION!

  3. Let's be honest. A glut of lawyers out there, because law schools have overproduced them. Law schools dont care, and big law loves it. So the firms can afford to underpay them. Typical capitalist situation. Wages have grown slowly for entry level lawyers the past 25 years it seems. Just like the rest of our economy. Might as well become a welder. Oh and the big money is mostly reserved for those who can log huge hours and will cut corners to get things handled. More capitalist joy. So the answer coming from the experts is to "capitalize" more competition from nonlawyers, and robots. ie "expert systems." One even hears talk of "offshoring" some legal work. thus undercutting the workers even more. And they wonder why people have been pulling for Bernie and Trump. Hello fools, it's not just the "working class" it's the overly educated suffering too.

  4. And with a whimpering hissy fit the charade came to an end ... http://baltimore.cbslocal.com/2016/07/27/all-charges-dropped-against-all-remaining-officers-in-freddie-gray-case/ WHISTLEBLOWERS are needed more than ever in a time such as this ... when politics trump justice and emotions trump reason. Blue Lives Matter.

  5. "pedigree"? I never knew that in order to become a successful or, for that matter, a talented attorney, one needs to have come from good stock. What should raise eyebrows even more than the starting associates' pay at this firm (and ones like it) is the belief systems they subscribe to re who is and isn't "fit" to practice law with them. Incredible the arrogance that exists throughout the practice of law in this country, especially at firms like this one.

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