Opinions

Opinions Jan. 6, 2014

January 6, 2014

The Indiana Supreme Court, Court of Appeals and Tax Court are closed Monday. The 7th Circuit Court of Appeals posted no Indiana opinions at IL deadline.

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Opinions Jan. 3, 2014

January 3, 2014
The Indiana Supreme Court, Court of Appeals and Tax Court posted no opinions by IL deadline. The 7th Circuit Court of Appeals posted no Indiana decisions by IL deadline.
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Opinions Jan. 2, 2014

January 2, 2014
7th Circuit Court of Appeals
United States of America v. Phillip Rucker

13-1297
U.S. District Court, Northern District of Indiana, Hammond Division. Judge Rudy Lozano.
Criminal. Affirms conviction of one count of wire fraud and sentence of 30 months imprisonment, one year of supervised release and $73,488.95 to be paid in restitution. In light of the admission of co-conspirator Sheila Chandler’s 11 prior convictions for wire fraud that were within the 10-year window, her 2000 conviction had very little probative value, if any. Thus, the District Court did not abuse its discretion in finding that the probative value of the remote conviction did not substantially outweigh the prejudicial effect of presenting cumulative evidence.

 
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Opinions Dec. 31, 2013

December 31, 2013
7th Circuit Court of Appeals
Zachary Medlock v. Trustees of Indiana University, et al.
13-1900
Civil. Affirms summary judgment in favor of IU and other defendants, holding that a student inspection of a dorm room that found marijuana followed by a police search warrant in which the pot was seized was not a violation of the Fourth Amendment. Likewise, the process through which Medlock was suspended was not a denial of due process.
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Opinions Dec. 30, 2013

December 30, 2013
Indiana Court of Appeals
Rico Nathaniel Morst v. State of Indiana (NFP)
84A01-1305-CR-226
Criminal. Affirms revocation of Morst’s probation.
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Opinions Dec. 27, 2013

December 27, 2013
7th Circuit Court of Appeals
Dawn Marie Adams v. James Gregory Adams
13-1636
Civil. Reverses District Court denial of creditor Dawn Marie Adams’ bankruptcy court claim against her former husband and business partner, James Gregory Adams. The bankruptcy court claims were previously adjudicated in state courts and the doctrine of issue preclusion prevented the bankruptcy court from rehearing those issues. Remanded for proceedings.
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Opinions Dec. 26, 2013

December 26, 2013
Indiana Court of Appeals
Terry Donald Rutledge v. State of Indiana (NFP)
18A05-1302-CR-70
Criminal. Affirms conviction of murder.
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Opinions Dec. 24, 2013

December 24, 2013
There are no opinions Dec. 24 due to the courts being closed.
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Opinions Dec. 23, 2013

December 23, 2013
Indiana Court of Appeals
Michael W. Peters, M.D. and Deaconess Hospital, Inc. v. Cynthia S. Kendall and Michael J. Kendall
82A01-1302-PL-55
Civil plenary. Affirms denial of the medical group’s motion for partial summary judgment in the medical malpractice lawsuit brought by the Kendalls. The proof of claim filed by the Kendalls in the liquidation proceedings of Dr. Peters’ insurer does not constitute a binding contract.
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Opinions Dec. 20, 2013

December 20, 2013

7th Circuit Court of Appeals
Michael E. Garcia v. Carolyn W. Colvin
13-2120
Civil. Reverses the Social Security Administration’s denial of disability benefits for Michael E. Garcia, finding that the denial was riddled with error and that the record shows Garcia is among the most seriously disabled applicants for disability the Circuit Court has encountered. Remands to the Social Security Administration for proceedings consistent with the opinion.

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Opinions Dec. 19, 2013

December 19, 2013
Indiana Supreme Court
Tyrice J. Halliburton v. State of Indiana
20S00-1206-LW-560
Life without parole. Affirms murder conviction and sentence of life without parole. The trial court did not err in admitting certain evidence. Concludes the trial court committed no error, let alone fundamental error, by admitting photographs into evidence. Finds the court’s limiting instruction was erroneous, but Halliburton made no claim that the error was fundamental and no such fundamental error occurred.
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Opinions Dec. 18, 2013

December 18, 2013
Indiana Court of Appeals
Ralph Stockton v. Falls Auctioneers and Realtors and Peggy Buck as Trustee of the Peggy Buck Trust
18A05-1304-CT-160
Civil tort. Reverses summary judgment in favor of Peggy Buck as trustee of the Peggy Buck Trust on Stockon’s negligence suit. There are questions of fact regarding whether Stockton’s fall was caused in part by the length of the grass and whether Buck controlled the length of the grass. It cannot be said as a matter of law that Buck owed no duty to Stockton and Buck was not entitled to summary judgment on this basis. Remands for further proceedings.
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Opinions Dec. 17, 2013

December 17, 2013
Indiana Supreme Court
Indiana Gas Company, Inc. and Southern Indiana Gas and Electric Company, et al v. Indiana Finance Authority and Indiana Gasification, LLC
93S02-1306-EX-407
Agency action. Affirms the Indiana Utility Regulatory Commission’s approval of a contract between Indiana Finance Authority and Indiana Gasification, LLC that obligates the state to purchase synthetic natural gas that would be produced at a coal-gasification plant in Rockport. A divided panel of the Court of Appeals had invalidated the contract, but justices agreed that the IURC’s decision should be affirmed because the parties modified the disputed portion of the contract.
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Opinions Dec. 16, 2013

December 16, 2013
Indiana Court of Appeals
Avon Trails Homeowners Association, Inc. v. Kellie Homeier
32A01-1307-PL-312
Civil plenary. Reverses denial of a temporary injunction that would have allowed Avon Trails to enforce a restrictive covenant barring Homeier from parking a trailer on her lot or an adjacent lot. Remands to the trial court with orders to adopt settlement language the parties submitted as a joint motion to vacate findings and submission of agreed entry of judgment.
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Opinions Dec. 13, 2013

December 13, 2013
Indiana Court of Appeals
John Everitt Dickey v. State of Indiana
10A01-1212-CR-587
Criminal. Affirms conviction of two counts of Class A child molesting, rejecting Dickey’s argument that testimony about his physical abuse of the victim and her mother was improperly admitted. The court held that Dickey failed to preserve the argument for appeal because, while his attorney objected to a line of questioning about when Dickey’s relationship with the victim’s mother began to change, a continuing objection was not raised.
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Opinions Dec. 12, 2013

December 12, 2013
Indiana Supreme Court
Richard Eric Johnson v. Gillian Wheeler Johnson
49S05-1303-DR-199
Domestic relation. Affirms the trial court order with respect to the calculation of Gillian Johnson’s health insurance premium credit and application of Eric Johnson’s Social Security Retirement benefits. Summarily affirms the Court of Appeals as to the remaining issues. The trial court’s approach was appropriate in light of the flexibility afforded by the Indiana Child Support Guidelines.
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Opinions Dec. 11, 2013

December 11, 2013
Indiana Court of Appeals
Carol Sparks Drake v. Thomas A. Dickey, Craig Anderson, Charles E. Podell, and Duke Realty Corporation
29A02-1302-CT-152
Civil tort. Reverses summary judgment for Duke Realty on Drake’s claim that it intentionally interfered with her partnership agreement with the law firm. The trial court erred when it concluded that Drake had failed to present a genuine issue of material fact as to whether Duke Realty intentionally induced Parr Richey to terminate Drake as a partner. Remands for further proceedings.
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Opinions Dec. 10, 2013

December 10, 2013
Indiana Court of Appeals
David Didion and Kristi Didion as Parents and Legal Guardians of Brayden Didion v. Auto-Owners Insurance Company
27A02-1303-PL-232
Civil plenary. Affirms summary judgment in favor of Auto-Owners Insurance Co. on its complaint seeking a declaratory judgment that it had no liability for a dog bite on an insured’s property. The person living at the property was not an insured and Auto-Owners was not given timely notice of the dog bite and injury pursuant to the terms of the policy.
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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.

I
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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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  1. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  2. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  3. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

  4. Justice has finally been served. So glad that Dr. Ley can finally sleep peacefully at night knowing the truth has finally come to the surface.

  5. While this right is guaranteed by our Constitution, it has in recent years been hampered by insurance companies, i.e.; the practice of the plaintiff's own insurance company intervening in an action and filing a lien against any proceeds paid to their insured. In essence, causing an additional financial hurdle for a plaintiff to overcome at trial in terms of overall award. In a very real sense an injured party in exercise of their right to trial by jury may be the only party in a cause that would end up with zero compensation.

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