Opinions

Opinions July 22, 2011

July 22, 2011
7th Circuit Court of Appeals
Continental Casualty Co. v. Sycamore Springs Homeowners Association Inc.
10-3261
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge Larry McKinney.
Civil. Affirms District Court’s conclusion that the homeowners association had not suffered “property damage” as defined in Continental Casualty’s policy insuring the builder. The language of the association’s own complaint in state court and the absence of any effort to apportion the $335,000 entitles Continental to judgment.
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Opinions July 21, 2011

July 21, 2011
7th Circuit Court of Appeals
Townsquare Media Inc., f/k/a Regent Communications Inc. v. Alan R. Brill, et al.
10-3017, 10-3018
U.S. District Court, Southern District of Indiana, Evansville Division, Chief Judge Richard Young.
Civil. The decision of the bankruptcy court to remand a suit to state court – which had been removed to the bankruptcy court after being filed in state court – is unreviewable and Regent’s appeal must be dismissed.
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Opinions July 20, 2011

July 20, 2011
Indiana Court of Appeals
Marianne Jackson v. Thomas Trancik, M.D.
29A02-1012-CC-1391
Civil collections. Reverses summary judgment to Dr. Trancik on his lawsuit to collect on a medical bill. The trial court abused its discretion in striking the affidavit of an expert witness designated by Jackson and that affidavit establishes an issue of material fact as to the amount she owes. Remand for further proceedings.
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Opinions July 19, 2011

July 19, 2011
7th Circuit Court of Appeals
Dana Woods, et al. v. Commissioner of the Indiana Department of Corrections
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge Jane E. Magnus-Stinson
10-3339
Civil. Affirms U.S. District Court’s finding that the Indiana Department of Correction policy preventing inmates from advertising for pen-pals and receiving materials from websites that allow persons to advertise for pen-pals is constitutional.
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Opinions July 18, 2011

July 18, 2011
Indiana Court of Appeals
David Delagrange v. State of Indiana
49A02-1010-CR-1086
Criminal. Affirms partial denial of motion to dismiss. The state has alleged that Delagrange knowingly or intentionally attempted to create an image of sexual conduct, which is a sufficient statement of Delagrange’s mental state to survive a motion to dismiss. Remands for further proceedings. Judge Baker dissents.
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Opinions July 15, 2011

July 15, 2011
Indiana Court of Appeals
Estate of Wilgus S. Gibbs, Sr.
81A01-1011-ES-560
Estate. Affirms grant of summary judgment in favor of Wilgus Gibbs Jr., individually and as a personal representative of the estate and executor of the will of Wilgus Gibbs Sr. Gibbs Sr.’s granddaughters failed to rebut the presumption of regularity in the execution of his will that is established by the self-proving clause. There is also no evidence of undue influence or that the will was the result of a mistake or fraud.
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Opinions July 14, 2011

July 14, 2011
7th Circuit Court of Appeals
United States of America v. Nathaniel Josiah Worden
10-3567
U.S. District Court, Northern District of Indiana, Hammond Division, Judge Joseph Van Bokkelen.
Criminal. Dismisses appeal of District Court’s order that Worden pay approximately $500,000 in restitution to one of the victims of his offense. The restitution order falls within the scope of the appellate waiver in Worden’s plea agreement to one count of advertising child pornography.
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Opinions July 13, 2011

July 13, 2011
7th Circuit Court of Appeals
Jill Treat, et al. v. Tom Kelley Buick Pontiac GMC Inc, et al.
10-3166
U.S. District Court, Northern District of Indiana, Fort Wayne Division, Judge William Lee.
Civil. Affirms summary judgment for Tom Kelley Buick and Kelley Automotive Group in the Treats’ suit under the Wage Payment Statute to recover unpaid wages. The Treats erroneously brought their claim under the Wage Payment Statute instead of the Wage Claims Statute.
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Opinions July 12, 2011

July 12, 2011
Indiana Court of Appeals
Tameka Maria Redding v. State of Indiana (NFP)
71A04-1102-CR-104
Criminal. Affirms conviction of Class D felony attempted theft.
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Opinions July 11, 2011

July 11, 2011
7th Circuit Court of Appeals
Bishop Harvey Jr., et al. v. Town of Merrillville, et al.
11-1041
U.S. District Court, Northern District of Indiana, Hammond Division, Judge Joseph Van Bokkelen. Affirms summary judgment for the defendants on the homeowners’ Section 1983 equal protection claim. Without a similarly situated comparator, the homeowners’ equal protection claim cannot hold water. The District Court also did not err in failing to address the homeowners’ belatedly asserted and undeveloped contention that the defendants violated their First Amendment rights by suppressing their speech. Modifies judgment to dismiss without prejudice instead of remanding the state law claims.
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Opinins July 8, 2011

July 8, 2011
7th Circuit Court of Appeals
John A. Logan v. Donna Wilkins, M.D., et. al.
10-1415
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge William T. Lawrence.
Civil. Affirms decision of district court that Logan is not entitled to amend his initial complaint, holding that he had already been given the opportunity to do so but had not amended.
 
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Opinions July 7, 2011

July 7, 2011
Indiana Court of Appeals
N.K. v. Review Board
93A02-1012-EX-1431
Civil. Reverses determination by the Review Board of the Indiana Department of Workforce Development that a worker fired for taking leftovers was not entitled to unemployment benefits.
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Opinions July 6, 2011

July 6, 2011
Indiana Court of Appeals
J.L., Child Alleged to be C.H.I.N.S.; J.L. v. I.D.C.S.
32A01-1010-JC-532
Juvenile CHINS. Affirms trial court’s finding that mother’s two sons are children in need of services, because of the mother’s repeated unsubstantiated claims that the father was abusing the boys.
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Opinions July 5, 2011

July 5, 2011
Indiana Court of Appeals
Larry E. Snell v. K-Industrial, LLC (NFP)
02A03-1010-CC-523
Collections. Affirms trial court’s judgment in favor of K-Industrial and trial court’s partial summary judgment in favor of Larry Snell. Reverses award of attorney fees to Snell, holding that Snell’s complaint did not arise from his agreement with K-Industrial.
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Opinions July 1, 2011

July 1, 2011
7th Circuit Court of Appeals
Bobby Johnson Jr. v. Hix Wrecker Service Inc., et. al.
09-3023
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge William T. Lawrence.
Civil. Reverses District Court’s grant of summary judgment in favor of Hix Wrecker Service, stating Hix failed to prove that Bobby Johnson was not entitled to overtime pay. Remands for further proceedings.
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Opinions June 30, 2011

June 30, 2011
Indiana Supreme Court
Arturo Garcia-Torres v. State of Indiana
64S03-0912-CR-550
Criminal. Affirms convictions of rape, attempted rape, and two counts of burglary. Garcia-Torres’ consent to the swab of his cheek for DNA was voluntary so the swab was not a violation of the Fourth Amendment. Declines to find Pirtle applies. Justice Rucker dissents.
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Opinions June 29, 2011

June 29, 2011
7th Circuit Court of Appeals
United States of America v. Brook Abebe
10-3966
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge Sarah Evans Barker.
Criminal. Affirms sentence of 300 months in prison following guilty plea to armed bank robbery, discharge of a firearm during a crime of violence, and unlawful possession of a firearm by a convicted felon. There was no procedural error in the District Court’s calculation of Abebe’s sentence and his sentence is not substantively unreasonable.
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Opinions June 28, 2011

June 28, 2011
Indiana Supreme Court
Randy Horton v. State of Indiana
48S04-1106-CR-386
Criminal. Affirms convictions of child molesting but reverses 324-year sentence and orders it be reduced to an aggregate executed term of 110 years. Enhances one Class A felony conviction to 50 years and orders the 30-year advisory sentence on the remaining Class A felony convictions. Orders the Class C felony convictions to be four years on each count. Remands for the trial court to issue an amended sentencing order.
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Opinions June 27, 2011

June 27, 2011
Indiana Court of Appeals
Vincent M. Butler, Jr. v. State of Indiana
84A01-1008-CR-414
Criminal. Affirms revocation of Butler’s probation. The record shows that the trial court adequately advised Butler of his right to counsel and that he knowingly, intelligently, and voluntarily waived that right. The trial court did not abuse its discretion by imposing the balance of his four-year previously suspended sentence. Judge Kirsch dissents.
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Opinions June 24, 2011

June 24, 2011
Indiana Court of Appeals
Involuntary Commitment of S.S.
49A02-1011-MH-1251
Mental health. Affirms order for S.S.’s temporary commitment. There was no prejudice to S.S. due to the doctor’s report being filed 16 minutes after the end of her detention period. The timely filing of the report is a procedural requirement, not a jurisdiction prerequisite. 
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Opinions June 23, 2011

June 23, 2011
7th Circuit Court of Appeals
Joseph E. Corcoran v. Bill Wilson, superintendent
07-2093, 07-2182
U.S. District Court, Northern District of Indiana, South Bend Division, Judge Allen Sharp.
Civil. Reinstates and incorporates by reference the earlier opinion in Corcoran v. Buss to the extent that it reversed the District Court’s judgment granting habeas relief on the basis of the claimed Sixth Amendment violation; and affirmed the District Court’s conclusion that the Indiana courts did not mishandle the issue of his competence to waive post-conviction remedies. Remands to District Court to permit it to address Corcoran’s remaining grounds for habeas relief.
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Opinions June 22, 2011

June 22, 2011
7th Circuit Court of Appeals
United States of America v. Michael Lee Mokol Jr.
10-2334
U.S. District Court, Northern District of Indiana, Hammond Division, Judge Joseph Van Bokkelen.
Criminal. Affirms two convictions of being a felon in possession of a firearm. The District Court did not abuse its discretion in admitting bad acts testimony through Lori Miller’s testimony as to Mokol’s statement that he would put anyone who told on him “in the ground;” or in admitting bad acts evidence involving his daughter’s testimony about the gun “prank” in the Rising Sun parking lot. The District Court did not err in restricting cross-examination of his daughter and the District Court didn’t abuse its discretion by instructing the jury as to constructive possession.
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Opinions June 21, 2011

June 21, 2011
7th Circuit Court of Appeals
United States of American v. Donella Locke
10-1351.
Criminal. Affirms convictions on five counts of wire fraud. Vacates Donella Locke’s 71-month sentence and restitution order and remands for resentencing proceedings, holding that the length of the sentence and amount of restitution were based in part on conduct not necessarily encompassed in the charges of conviction. Also holds that the court erred in ordering Locke to pay restitution to victims not clearly harmed by the conduct in Locke’s counts of conviction.
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Opinions June 20, 2011

June 20, 2011
Indiana Court of Appeals
Nelson E. Rios v. State of Indiana (NFP)
49A05-1010-CR-612
Criminal. Affirms sentence for two counts of Class C felony dealing in a look-alike substance.
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Opinions June 17, 2011

June 17, 2011
Indiana Court of Appeals
Shaun M. Berry v. State of Indiana
57A03-1011-CR-579
Criminal. Reverses trial court’s imposition of public defender fee and remands for a determination of Shaun Berry’s ability to pay for his legal services and for clarification of $364 in court costs. Holds the court failed to identify statutory authorization for imposing court costs and failed to make statutorily required finding that Berry had the ability to pay public defender fee.
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