Opinions Jan. 10, 2013

January 10, 2013
Indiana Supreme Court
Andre Gonzalez v. State of Indiana
Criminal. Reverses denial of petition to remove the lifetime registration requirement and remands for further proceedings. Finds the Ex Post Facto Clause of the Indiana Constitution prohibits retroactive application of a lifetime registration requirement for Gonzalez, whose requirement to register for life was added while he was completing the 10-year required registration as a sex offender that was in place at the time due to his child solicitation conviction. Justice Rucker concurs in result.

Opinions Jan. 9, 2013

January 9, 2013
7th Circuit Court of Appeals
United States of America v. Michael D. Weir
U.S. District Court, Southern District of Indiana, Terre Haute Division, Judge Jane Magnus-Stinson.
Criminal. All the judges on the original panel have voted to deny the petition for rehearing and no judge in regular active service asked for a vote on the petition for rehearing en banc. The petition is therefore denied. Weir complained that his Fourth Amendment rights were violated when a police officer seized $6,655 from him during a traffic stop.


Opinions Jan. 8, 2013

January 8, 2013
7th Circuit Court of Appeals
West Bend Mutual Insurance Co. v. Arbor Homes LLC
U.S. District Court, Southern District of Indiana, Indianapolis Division, Magistrate Judge Tim A Baker. Affirms District Court ruling in favor of West Bend Mutual Insurance that it has no duty to defend or indemnify Arbor Homes. Arbor Homes agreed to a settlement with homeowners without obtaining the prior consent of West Bend after raw sewage backed up into their brand new home.

Opinions Jan. 7, 2013

January 7, 2013
Indiana Court of Appeals
Term. of the Parent-Child Rel. of: C.A. & Z.A. (Minor Children), and H.A. (Father) v. The Indiana Dept. of Child Services (NFP)
Juvenile. Affirms termination of father’s parental rights.

Opinions Jan. 4, 2013

January 4, 2013
Indiana Court of Appeals
State of Indiana v. Daniel E. Riley
Criminal. Reverses dismissal of Class B misdemeanor battery charges. Because the information was proper even with Indiana Gaming Agent Audrey Smoot as an affiant, and because there appears to have been no other basis for the dismissal (other than possibly a mistaken belief that an unauthorized investigation would affect the information), the trial court abused its discretion in granting the dismissal.

Opinions Jan. 3, 2013

January 3, 2013
7th Circuit Court of Appeals
United States of America v. Juan Ramirez-Fuentes
U.S. District Court, Northern District of Indiana, Hammond Division, Chief Judge Philip P. Simon.
Criminal. Affirms convictions and 295-month sentence for possession with the intent to distribute 500 grams or more of methamphetamine and possessing firearms in furtherance of a drug-trafficking crime. Finds no plain error in admitting testimony about the possession of firearms, but testimony classifying the drug as “Mexican” methamphetamine shouldn’t have been allowed. Finds judge considered family situation when sentencing Ramirez-Fuentes.

Opinions Dec. 31, 2012

January 2, 2013
Indiana Court of Appeals
Indiana Public Employee Retirement Fund v. Paul Bryson
Miscellaneous. Affirms original opinion that Bryson’s on-duty injury was a “covered impairment” making him eligible for Class 1 impairment disability benefits even though he had a pre-existing condition.

Opinions Dec. 28, 2012

December 28, 2012
Indiana Court of Appeals
James M. Brinkley and Stephanie L. Brinkley v. Michael Haluska, P.E., d/b/a Retro Tech, et al.
Miscellaneous. Affirms trial court’s summary judgment that Donald Gindelberger is a good faith purchaser for value of a 1965 Chevrolet Corvette because the Brinkleys were in the best position to prevent the allegedly fraudulent sale and did not do so. Also, it concluded the BMV is immune from liability.

Opinions Dec. 27, 2012

December 27, 2012
7th Circuit Court of Appeals
United States of America v. Fairly W. Earls
U.S. District Court, Northern District of Indiana, Hammond Division. Judge Joseph S. Van Bokkelen.
Criminal. Affirms conviction of making a false statement on a passport application, aggravated identity theft and knowingly transferring a stolen identification document. Affirms the admission of certain evidence at Earls’ trial and finds the District Court did not err in its calculation of his offense level.

Opinions Dec. 21, 2012

December 21, 2012
Indiana Court of Appeals
Steven E. Malloch v. State of Indiana
Criminal. Affirms conviction of Class A felony child molesting for an incident involving his stepdaughter. There was no prosecutorial misconduct and the trial court did not err by admitting Malloch’s apology letter to C.P. Although Malloch did not receive a perfect trial, the appellate judges are confident he received a fair trial.

Opinions Dec. 20, 2012

December 20, 2012
7th Circuit Court of Appeals
Joshua Beller, a minor, by his next friend and mother, Melissa Welch, et al. v. Health and Hospital Corp. of Marion County Ind., d/b/a Wishard Memorial Hospital d/b/a Wishard Ambulance Service
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge Tanya Walton Pratt.
Civil. Affirms summary judgment for the defendants on the plaintiffs lawsuit alleging violation of the Emergency Medical Treatment and Active Labor Act by failing to stabilize Welch and her son during an emergency medical situation. Because the Wishard ambulance was operating under the EMS protocol at the time the plaintiffs were in it, the plaintiffs had not come to the Wishard emergency department under the EMTALA, and the plaintiffs’ claim cannot succeed.

Opinions Dec. 19, 2012

December 19, 2012
7th Circuit Court of Appeals
Norman W. Bernstein, et al. v. Patricia A. Bankert, et al. and Auto Owners Mutual Insurance Co.
11-1501, 11-1523
U.S. District Court, Southern District of Indiana, Indianapolis Division, Chief Judge Richard L. Young.
Civil. Reverses dismissal of counts I, II, III and VII. In Count I, the trustees have made a timely CERCLA claim, under 42 U.S.C. § 9607(a)(4)(B), to recover costs incurred pursuant to the 2002 AOC. The trustees’ Count II “companion claim” for a declaratory judgment of CERCLA liability is therefore also reinstated. Finds that the Indiana ELA claim contained in Count III is timely, and that the declaratory judgment claim contained in Count VII is not moot. The District Court committed no abuse of discretion in its handling of the summary judgment briefing process. Finally, affirms the District Court’s denial of Auto Owners’ motion for summary judgment on preclusion grounds. The trustees’ suit is reinstated and remanded for further proceedings consistent with this opinion.

Opinions Dec. 18, 2012

December 18, 2012
Indiana Court of Appeals
Timothy Schepers v. State of Indiana
Criminal. Affirms on interlocutory appeal a trial court denial of a motion to dismiss several drug charges and a Class C felony count of neglect of a dependent. The court held that Schepers’ filing of a pro se motion for a speedy trial and motion to dismiss for violation of Criminal Rule 4 were filed while he was represented by a public defender and that he did not clearly and unequivocally assert his right to self-representation. Remands cause for trial.

Opinions Dec. 17, 2012

December 17, 2012
Indiana Court of Appeals
Charles Knight v. Allstate Property and Casualty Ins. Co. (NFP)
Civil plenary. Affirms summary judgment in favor of Allstate.

Opinions Dec. 14, 2012

December 14, 2012
Indiana Court of Appeals
Brenda Alexander v. Donald Alexander
Domestic relations. Affirms in a divided opinion the trial court denial of a motion to correct error of the court’s omission of an award for incapacity maintenance for Brenda Alexander. She claimed that testimony of her disabilities and court findings supported an award, but the majority held that the trial court did not abuse its discretion on ruling that such an award was not warranted.

Opinions Dec. 13, 2012

December 13, 2012
7th Circuit Court of Appeals
Estate of Rudy Escobedo (deceased) (Raquel Hanic, Personal Representative of Estate) v. Officer Brian Martin, et al.
U.S. District Court, Northern District of Indiana, Fort Wayne Division, Judge Theresa L. Springmann.
Civil. Affirms jury verdict in favor of the defendants on the estate’s excessive force claim against the police and the city of Fort Wayne and grant of judgment as a matter of laws on qualified immunity grounds, as well as summary judgment in favor of officers Martin and Brown on the excessive force claim.

Opinions Dec. 12, 2012

December 12, 2012
Indiana Court of Appeals
Ponziano Construction Services, Inc. v. Quadri Enterprises, LLC
Civil collection. Reverses award of $16,000 to Ponziano on its breach of contract claim against Quadri and the denial of Ponziano’s rquest to foreclose on its mechanic’s lien. Affirms the award of $8,000 in attorney fees to Ponziano and remands with instructions to the trial court to enter judgment in favor of Ponziano for $48,483.43, order sale of the property subject to the $45,549.43 lien, and determine the existence, extent, and outcome of a potential priority dispute between Ponziano and Wells Fargo.

Opinions Dec. 11, 2012

December 11, 2012
Indiana Court of Appeals
Paul Henry Gingerich v. State of Indiana
Criminal. Reverses conviction of Class A felony conspiracy to commit murder and remands for further proceedings. The juvenile court abused its discretion when it denied Gingerich’s request for a continuance.

Opinions Dec. 10, 2012

December 10, 2012
Indiana Court of Appeals
David Vance v. Francisco Lozano, et al.
Small claim. Reverses judgment in favor of Rock Solid and Lozano on Vance’s breach of contract claim. Finds the parties entered into an enforceable settlement agreement.

Opinions Dec. 7, 2012

December 7, 2012
Indiana Court of Appeals
Terry L. Brown v. Tammy S. Brown
Civil plenary. Reverses civil judgment in favor of Terry Brown’s ex-wife. The trial court abused its discretion when it admitted evidence regarding criminal offenses he committed more than 20 years ago. Remands for further proceedings.

Opinions Dec. 6, 2012

December 6, 2012
Indiana Court of Appeals
Connie Yates, Rick Yates, Jason Tibbs, and Pauline Tibbs v. Levi Wayne Kemp

Civil tort. Reverses grant of partial summary judgment to Kemp on the Yateses’ and Tibbses’ claims for nuisance. Based on the plain language of I.C. 14-22-31.5-6 and its context in the act as a whole, Kemp is not shielded by section 6 from liability related to his neighbors’ nuisance claims arising from noise pollution. There is also a material fact as to whether Kemp has caused his neighbors to experience inconvenience, annoyance or discomfort.

Opinions Dec. 5, 2012

December 5, 2012
7th Circuit Court of Appeals
United States of America v. Gregory Wolfe
U.S. District Court, Northern District of Indiana, Hammond Division, Judge Rudy Lozano.
Criminal. Affirms convictions of bank theft and interstate transportation of stolen goods for Wolfe’s role in a copper theft scheme and his 88-month sentence, followed by concurrent three-year terms of supervised release, and order of more than $3 million in restitution. Wolfe argued that he was deprived of a fair trial because of statements the prosecutor made during closing argument. He also challenged the sentence and restitution order. Wolfe’s contentions lack merit.

Opinions Dec. 4, 2012

December 4, 2012
Indiana Court of Appeals
Jerry Vanzyll v. State of Indiana
Criminal. Affirms in part, reverses in part and remands to the trial court convictions of Class B felony dealing in methamphetamine, Class D felonies of possession of meth and possession of chemical reagents or precursors with intent to manufacture a controlled substance, and Class A misdemeanor resisting law enforcement. The court affirmed the drug convictions but ordered the resisting conviction vacated because it held there was insufficient evidence to prove that Vanzyll fled.

Opinions Dec. 3, 2012

December 3, 2012
Indiana Court of Appeals
State of Indiana v. Terry J. Hough
Criminal. Affirms trial court’s grant of a petition that Hough’s name be removed from the Indiana Sex Offender Registry, holding that requiring him to register for a Pennsylvania rape committed before the establishment of the registry would violate the Indiana Constitution’s prohibition of ex post facto laws.

Opinions Nov. 30, 2012

November 30, 2012
Indiana Supreme Court
State of Indiana Ex Rel., Indiana Supreme Court Disciplinary Commission v. Derek A. Farmer
Attorney discipline. Rejected petition to enjoin unauthorized practice of law, holding that the Disciplinary Commission failed to prove that Farmer had engaged in the unauthorized practice of law, and failed to convince the court that Farmer could not have reasonably expected to be authorized for temporary admission due to a pending disciplinary proceeding.
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  1. I have an open CHINS case I failed a urine screen I have since got clean completed IOP classes now in after care passed home inspection my x sister in law has my children I still don't even have unsupervised when I have been clean for over 4 months my x sister wants to keep the lids for good n has my case working with her I just discovered n have proof that at one of my hearing dcs case worker stated in court to the judge that a screen was dirty which caused me not to have unsupervised this was at the beginning two weeks after my initial screen I thought the weed could have still been in my system was upset because they were suppose to check levels n see if it was going down since this was only a few weeks after initial instead they said dirty I recently requested all of my screens from redwood because I take prescriptions that will show up n I was having my doctor look at levels to verify that matched what I was prescripted because dcs case worker accused me of abuseing when I got my screens I found out that screen I took that dcs case worker stated in court to judge that caused me to not get granted unsupervised was actually negative what can I do about this this is a serious issue saying a parent failed a screen in court to judge when they didn't please advise

  2. I have a degree at law, recent MS in regulatory studies. Licensed in KS, admitted b4 S& 7th circuit, but not to Indiana bar due to political correctness. Blacklisted, nearly unemployable due to hostile state action. Big Idea: Headwinds can overcome, esp for those not within the contours of the bell curve, the Lego Movie happiness set forth above. That said, even without the blacklisting for holding ideas unacceptable to the Glorious State, I think the idea presented above that a law degree open many vistas other than being a galley slave to elitist lawyers is pretty much laughable. (Did the law professors of Indiana pay for this to be published?)

  3. Paul Hartman of Burbank, Oh who is helping Sister Fuller with this Con Artist Kevin Bart McCarthy scares Sister Joseph Therese, Patricia Ann Fuller very much that McCarthy will try and hurt Patricia Ann Fuller and Paul Hartman of Burbank, Oh or any member of his family. Sister is very, very scared, (YES, I AM) This McCarthy guy is a real, real CON MAN and crook. I try to totall flatter Kevin Bart McCARTHY to keep him from hurting my best friends in this world which are Carolyn Rose and Paul Hartman. I Live in total fear of this man Kevin Bart McCarthy and try to praise him as a good man to keep us ALL from his bad deeds. This man could easy have some one cause us a very bad disability. You have to PRAISAE in order TO PROTECT yourself. He lies and makes up stories about people and then tries to steal if THEY OWN THRU THE COURTS A SPECIAL DEVOTION TO PROTECT, EX> Our Lady of America DEVOTION. EVERYONE who reads this, PLEASE BE CAREFUL of Kevin Bart McCarthy of Indianapolis, IN My Phone No. IS 419-435-3838.

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

  5. 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.