Opinions

Opinions Aug. 22, 2011

August 22, 2011
Indiana Court of Appeals
Smith Barney, et al. v. StoneMor Operating LLC, et al.
41A04-1103-MF-96
Mortgage foreclosure. Affirms denial of Barney’s motion to compel arbitration. As a matter of law, Independence Trust was not a “successor in interest” to either of the prior trustees and therefore isn’t bound by the arbitration clause in the account agreements. Consequently, there is no basis for compelling StoneMor to arbitrate its claims.
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Opinions Aug. 19, 2011

August 19, 2011
Indiana Court of Appeals
George A. Feuston v. State of Indiana
38A02-1011-CR-1175
Criminal. Affirms denial of Feuston’s motion for discharge of his Class D felony theft charge in Jay County. He caused the delay in the case by absconding and failing to appear at his pretrial conference. Chief Judge Robb concurs in a separate opinion.

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Opinions Aug. 18, 2011

August 18, 2011
Indiana Court of Appeals
The Kroger Company, et al. v. Plan Commission of the Town of Plainfield, Indiana
32A04-1012-MI-751
Miscellaneous. Reverses trial court’s grant of summary judgment in favor of the Plan Commission of the Town of Plainfield and remands for further proceedings, holding the plan commission must provide specific reasons for denying Kroger’s development petition.
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Opinions Aug. 17, 2011

August 17, 2011
7th Circuit Court of Appeals
Lisa Hicks v. Avery Drei, LLC and Chance Felling
10-2744
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge Jane Magnus-Stinson.
Civil. Affirms grant of Avery Drei and Felling’s motion for judgment as a matter of law on Hicks’ vacation pay claim and a portion of their similar motion on her overtime pay claim. Evidence shows that Hicks and Felling had an agreement that Hicks would not earn vacation pay until after being employed for one year; her employment ended before she reached her one-year anniversary. The District Court did not abuse its discretion in denying Hicks’ motion in limine. Affirms in all other respects.
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Opinions Aug. 16, 2011

August 16, 2011
7th Circuit Court of Appeals
Lady Di’s, Inc. v. Enhanced Services Billing, Inc., and ILD Telecomunications, doing business as ILD Teleservices, Inc.
10-3903
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge Sarah Evans Barker.
Civil. Affirms District Court’s denial of plaintiff’s request for class certification and grant of the defendants’ motions for summary judgment on the unjust enrichment and statutory deception claims, holding Indiana “anti-cramming” regulation does not apply to the defendants because they are not telephone companies and did not act in this case as billing agents for telephone companies.
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Opinions Aug. 15, 2011

August 15, 2011
Indiana Court of Appeals
T.W. v. State of Indiana
54A01-1103-JV-125
Juvenile. Affirms order that T.W. must register as a sex offender for 10 years. In the absence of any constitutional constraints, it was entirely the General Assembly’s prerogative to grant Indiana courts the subject matter jurisdiction to enter orders requiring certain juveniles to register as sex offenders. The trial court did not abuse its discretion in overruling T.W.’s objections to the testimony of two court-appointed psychologists.
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Opinions Aug. 12, 2011

August 12, 2011
LaDon Moore v. Review Board and Whitington Homes and Services
93A02-1005-EX-529
Civil. Affirms finding that Moore was discharged by her employer for just cause. Finds that publishing the names of the parties involved in cases with the Review Board of the Indiana Department of Workforce Development is essential to eliminate confusion and to increase efficiency.
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Opinions Aug. 11, 2011

August 11, 2011

Indiana Court of Appeals
Westville Correctional Facility, et al. v. George Finney
49A05-1103-PL-92
Civil plenary. Affirms grant of Finney’s verified petition for judicial review. Westville has not shown that the reviewing court committed reversible error. It is clear from the record that the agency’s action was without evidentiary foundation, let alone substantial evidence as required by Ind. Code 4-21.5-5-14(d)(5).
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Opinions Aug. 10, 2011

August 10, 2011
7th Circuit Court of Appeals
Gregory K. Weatherbee v. Michael J. Astrue, Commissioner of the Social Security Administration
10-3736
U.S. District Court, Southern District of Indiana, New Albany Division, Judge Tanya Walton Pratt.
Civil. Affirms denial of application for Social Security disability insurance benefits and supplemental security income payments after plaintiff suffered serious injuries in a motorcycle crash. The decision to deny his application was supported by substantial evidence.
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Opinions Aug. 9, 2011

August 9, 2011

Indiana Court of Appeals
Steven Buse, Kathleen Payne, et al. v. Trustees of the Luce Township Regional Sewer District
74A05-1009-PL-590
Civil plenary. Reverses trial court’s conclusion that four counts of the property owners’ complaint constitute a public lawsuit against the Luce Township Regional Sewer District, pursuant to Indiana Code 34-6-2-124. Remands for further proceedings.

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Opinions Aug. 8, 2011

August 8, 2011
7th Circuit Court of Appeals
United States of America v. Wanda Joshua, et al.
10-2140, 10-2181, 10-2182
U.S. District Court, Northern District of Indiana, Hammond Division, Judge Philip Simon.
Criminal. Affirms convictions of two counts of mail fraud. Although the evidence of the mailing element of mail fraud was thin, it was enough to send the case to the jury. Finds the defendants arguments that Skilling v. United States requires the court to set aside their convictions, and that the District Court improperly instructed the jury regarding their advice-of-counsel defense have no merit.
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Opinions Aug. 5, 2011

August 5, 2011
7th Circuit Court of Appeals
Jayne A. Mathews-Sheets v. Michael J. Astrue, Commissioner of Social Security
10-3746
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge William T. Lawrence.
Civil. Reverses denial of request for $25,200 in attorney fees after prevailing in a suit for Social Security disability benefits. On remand the plaintiff’s lawyer will have to show that without a cost-of-living increase that would bring the fee award up to $170 per hour, a lawyer capable of competently handling the challenge that his client mounted to the denial of Social Security disability benefits could not be found in the relevant geographical area to handle such a case.
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Opinions Aug. 4, 2011

August 4, 2011
Indiana Court of Appeals
Terrence Williams v. State of Indiana
49A02-1101-CR-9
Criminal. Reverses denial of Williams’ petition that a handgun seized by police be released to his counsel. Williams asked the gun be returned after his carrying a handgun without a license charge was dismissed. Williams’ inability to lawfully possess a handgun, without more, doesn’t prevent the return of the gun to his counsel.
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Opinions, Aug. 3, 2011

August 3, 2011
Indiana Court of Appeals
T.W. v. Review Board
93A02-1011-EX-1223
Agency action. Reverses finding that T.W. was ineligible to receive unemployment benefits as a result of his failure to disclose self-employment. There is no statutory or evidentiary basis for a finding that T.W.’s failure to disclose his relationship with Professional Labor Services would disqualify him from receiving benefits, reduce his benefits, or render him ineligible for benefits or extended benefits. Remands for further proceedings.
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Opinions Aug. 2, 2011

August 2, 2011
Indiana Court of Appeals
Bryan Johnson v. State of Indiana
45A05-1012-CR-816
Criminal. Affirms court’s denial of motion to suppress, citing a “good faith” exception to the admissibility of a search warrant. Holds that the detective believed a court employee had taken care of all the steps necessary to properly file a search warrant. 
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Opinions Aug. 1, 2011

August 1, 2011
7th Circuit Court of Appeals
Joshua Resendez v. Wendy Knight
11-1121
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge Sarah Evans Barker.
Civil. Judge Kenneth Ripple grants Resendez’s application for certificate of appealability. The application set forth a substantial showing of the denial of a constitutional right.
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Opinions July 29, 2011

July 29, 2011
Indiana Court of Appeals
Don Harley v. State of Indiana
20A03-1012-PC-630
Post conviction. Reverses denial of petition for post-conviction relief and remands for a new trial. Harley’s trial attorney was ineffective when she failed to inform the trial court that Harley’s only income consisted of Supplemental Security Income.
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Opinions July 28, 2011

July 28, 2011
Indiana Court of Appeals
Jason Keigley v. State of Indiana (NFP)
49A04-1012-CR-743
Criminal. Affirms convictions of and sentence for Class C felony identity deception and five counts of Class D felony fraud in loan brokering.
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Opinions July 27, 2011

July 27, 2011
Indiana Court of Appeals
James W. Miller v. State of Indiana
64A03-1008-CR-543
Criminal. Affirms convictions of two counts of Class A misdemeanor neglect of a vertebrate animal. The evidence is sufficient to show that Miller recklessly endangered the horses’ health by failing to provide them adequate food so as to neglect them. The trial court’s failure to appoint the state veterinarian doesn’t require the reversal of Miller’s convictions.
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Opinions July 26, 2011

July 26, 2011
Indiana Court of Appeals
Mary McCraney v. Steven Gibson, et al.
49A05-1009-CT-528
Civil tort. Affirms summary judgment in favor of Steven Gibson, and Bradley and Natalie Calow with respect to Mary McCraney’s negligence claim resulting in personal injuries. Applying the two-prong test, which finds that the duty of reasonable care imposed upon a landowner is measured by the landowner’s control or possession of the property and the landowner’s knowledge of the dangerous propensities of the dog, McCraney fails to prove the landlords knew of the dog’s violent propensity.
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Opinions July 25, 2011

July 25, 2011
Indiana Court of Appeals
Lauren Pease v. Edward Pease (NFP)
18A05-1010-DR-671
Domestic relation. Affirms division of marital estate and order that each party pay its own attorney fees.
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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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  1. I just wanted to point out that Congressman Jim Sensenbrenner, Senator Feinstein, former Senate majority leader Bill Frist, and former attorney general John Ashcroft are responsible for this rubbish. We need to keep a eye on these corrupt, arrogant, and incompetent fools.

  2. Well I guess our politicians have decided to give these idiot federal prosecutors unlimited power. Now if I guy bounces a fifty-dollar check, the U.S. attorney can intentionally wait for twenty-five years or so and have the check swabbed for DNA and file charges. These power hungry federal prosecutors now have unlimited power to mess with people. we can thank Wisconsin's Jim Sensenbrenner and Diane Feinstein, John Achcroft and Bill Frist for this one. Way to go, idiots.

  3. I wonder if the USSR had electronic voting machines that changed the ballot after it was cast? Oh well, at least we have a free media serving as vicious watchdog and exposing all of the rot in the system! (Insert rimshot)

  4. Jose, you are assuming those in power do not wish to be totalitarian. My experience has convinced me otherwise. Constitutionalists are nearly as rare as hens teeth among the powerbrokers "managing" us for The Glorious State. Oh, and your point is dead on, el correcta mundo. Keep the Founders’ (1791 & 1851) vision alive, my friend, even if most all others, and especially the ruling junta, chase only power and money (i.e. mammon)

  5. Hypocrisy in high places, absolute immunity handed out like Halloween treats (it is the stuff of which tyranny is made) and the belief that government agents are above the constitutions and cannot be held responsible for mere citizen is killing, perhaps has killed, The Republic. And yet those same power drunk statists just reel on down the hallway toward bureaucratic fascism.

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