Opinions May 11, 2012

May 11, 2012
7th Circuit Court of Appeals
BMD Contractors Inc. v. Fidelity and Deposit Company of Maryland
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge Tanya Walton Pratt.
Civil. Affirms summary judgment for Fidelity and Deposit Company of Maryland. The Industrial Power/BMD Contractors subcontract expressly provides that Industrial Power’s receipt of payment is a condition precedent to its obligation to pay BMD. Because Industrial Power was never obligated to pay BMD in the first place, BMD may not recover against Fidelity on the payment bond. Also holds that pay-if-paid clauses are not void under Indiana public policy.

Opinions May 10, 2012

May 10, 2012
Indiana Court of Appeals
Allison Riggle v. State of Indiana
Criminal. Reverses conviction of Class A misdemeanor possession of marijuana. The traffic stop was invalid because Riggle did not commit a traffic violation. Remands with instructions to vacate her conviction.

Opinions May 9, 2012

May 9, 2012
Indiana Court of Appeals
Ashanti Clemons v. State of Indiana
Post conviction. Affirms denial of amended petition for post-conviction relief. Clemons was not denied effective assistance of his trial and appellate counsel.

Opinions May 7, 2012

May 7, 2012
Indiana Court of Appeals
Luis Ramos v. State of Indiana (NFP)

Criminal. Affirms sentences for felony murder and Class A misdemeanor possession of a handgun without a license, but remands for correction of sentence, holding sentences were to be served consecutively, not concurrently.

Opinions May 3, 2012

May 3, 2012
Indiana Court of Appeals
M.O. v. Indiana Dept. of Insurance, Indiana Patient's Compensation Fund
Civil plenary. Affirms conclusion that Indiana Code 24-4.6-1-101 (1993), with its 8 percent interest rate, applies to payments to M.O, a successful malpractice claimant, and that interest began to accrue on the 15th day of the month following the end of the claim period in which the claim was filed with the Patient’s Compensation Fund.

Opinions May 2, 2012

May 2, 2012
Indiana Court of Appeals
Andrew C. Kesling, individually and as Trustee of the Andrew C. Kesling Trust v. Peter C. Kesling, et al.
Civil plenary. Reverses judgment in favor of father Peter Kesling that found he was entitled to rescission of stock purchase agreements entered into on June 25, 2004. Finds that Andrew Kesling’s trust declaration did not deprive him status as a shareholder and that he was a shareholder when he entered into the purchase agreements with Peter Kesling. Remands for the court to rule on the claims raised by Andrew Kesling’s siblings.

Opinions May 1, 2012

May 1, 2012
7th Circuit Court of Appeals
Securities and Exchange Commission v. First Choice Management Services Inc. et al.; SonCo Holdings LLC v. Joseph D. Bradley, receiver, and ALCO Oil & Gas Co. LLC
U.S. District Court, Northern District of Indiana, South Bend Division, Judge Robert L. Miller Jr.
Civil. Affirms order insofar as it determines that SonCo willfully violated the agreed order, but vacates the $600,000 sanction and remands. On remand, the judge can: reimpose the sanction he imposed, upon demonstrating that it is a compensatory remedy for a civil contempt after all; impose a different or perhaps no sanction, whether for civil contempt or for misconduct not characterized as contempt; or proceeding under the rules governing criminal contempts.

Opinions April 30, 2012

April 30, 2012
Indiana Court of Appeals
D.A. v. State of Indiana
Juvenile. Affirms juvenile court’s decision to order inpatient treatment for D.A. who entered into a plea agreement admitting to Class B misdemeanor battery if committed by an adult and “conditionally” agreed to admit to Class C felony child molesting, if committed by an adult. D.A.’s placement is consistent with the goals for his rehabilitation. The appellate judges do not have jurisdiction to resolve the issue of whether the trial court erred in accepting his conditional plea to the child molesting charge because there was no evidence of D.A.’s intent with regard to the molesting. The conditional plea is the equivalent to a withheld judgment so there is no final judgment or appealable final order from which to appeal.

Opinions April 27, 2012

April 27, 2012
Indiana Court of Appeals
In the Matter of V.C., Child Alleged to be in Need of Services v. Indiana Dept. of Child Services
Juvenile. Affirms determination that V.C. is a child in need of services. The juvenile court did not erroneously deny father’s request to issue a subpoena to the maternal aunt. Father also failed to demonstrate good cause for granting his request for a continuance, so the juvenile court acted within its discretion in denying his request.

Opinions April 26, 2012

April 26, 2012
Indiana Court of Appeals
Christopher King v. Karen Patrick (NFP)
Civil plenary. Reverses grant of partial summary judgment against Christopher King on Karen Patrick’s complaint against him alleging breach of contract. Remands for further proceedings.

Opinions April 25, 2012

April 25, 2012
Indiana Court of Appeals
John Ludack v. State of Indiana
Criminal. Affirms convictions of and aggregate 130-year sentence for two counts of Class A felony child molesting and being a habitual offender. Defense counsel, by first asking the detective whether Ludack had admitted the allegations of child molestation during the interview, opened the door to the detective’s testimony that Ludack neither admitted nor denied the allegations of child molesting and just asked to stop speaking. Ludack also failed to prove his sentence is inappropriate.

Opinions April 24, 2012

April 24, 2012
Indiana Court of Appeals
George Clements v. Kimberly Hall and Stanley Harmon
Miscellaneous. Reverses trial court’s award of summary judgment for Kimberly Hall and Stanley Harmon, holding their attorney failed to notify George Clements and his attorney that a motion had been filed. Remands for further proceedings consistent with its opinion.

Opinions April 23, 2012

April 23, 2012
Indiana Court of Appeals
Richard Leggs v. State of Indiana
Criminal. Affirms convictions of and sentences for one count of Class B felony criminal confinement and one count each of Class C felony intimidation, Class C felony criminal recklessness, and Class A misdemeanor resisting law enforcement. Reverses one count of Class B felony criminal confinement, due to the continuing crime doctrine and remands for resentencing.

Opinions April 20, 2012

April 20, 2012
Indiana Court of Appeals
Andre M. Perry v. State of Indiana (NFP)
Criminal. Affirms convictions of murder, Class A felony attempted murder and Class D felony residential entry.

Opinions April 19, 2012

April 19, 2012
Indiana Court of Appeals
Anthony Hogan v. State of Indiana
Post conviction. Affirms denial of petition for post-conviction relief. Hogan failed to show ineffective assistance of trial and appellate counsel.

Opinions April 18, 2012

April 18, 2012
Indiana Court of Appeals
Todd Walters and Matenia Walters v. Aaron Austin and Herman & Goetz, Inc.
Civil tort. Dismisses the Walterses’ appeal of the judgment on a jury verdict in favor of Austin and his employer on the Walterses’ complaint for damages arising from a multi-vehicle accident. The appellate court does not have jurisdiction. Judge Darden dissents.

Opinions April 17, 2012

April 17, 2012
7th Circuit Court of Appeals
United States of America v. Kimani Lanier Fleming
U.S. District Court, Northern District of Indiana, South Bend Division, Judge Robert L. Miller Jr.
Criminal. Affirms Fleming’s revised sentence of 480 months imprisonment for convictions of several serious drug and firearm charges. There was no clear error in the District Court’s decision to include routine drug purchases as relevant conduct when it computed his revised sentencing guideline range. Denies Fleming’s implicit request for an expanded certificate of appealability. 

Opinions April 16, 2012

April 16, 2012
Indiana Court of Appeals
Whiskey Barrel Planters Co., Inc., n/k/a Diggs Enterprises, Inc., Robinson Family Enterprises, LLC, et al. v. American GardenWorks, Inc., and Millennium Real Estate Investment, LLC
Civil plenary. Reverses determination in favor of American GardenWorks and Millennium Real Estate on AGW and MRE’s fraud claims against Whiskey Barrel and judgment for $409,611.24 and attorney fees and costs. The trial court erred in denying Whiskey Barrel’s motion for partial summary judgment on the issue of whether AGW was entitled to loans made to Whiskey Barrel shareholders and on the issue of whether AGW was entitled to 2008 season football tickets to Purdue that were purchased with Whiskey Barrel funds. The trial court erred in determining that AGW acquired the previous owner’s personal property under the terms of the purchase agreement. Remands for the trial court to determine the amount of attorney fees – if any – that are recoverable.

Opinions April 13, 2012

April 13, 2012
The 7th Circuit Court of Appeals and Indiana appellate courts posted no opinions at IL deadline.

Opinions April 12, 2012

April 12, 2012
7th Circuit Court of Appeals
United States of America v. Jaymie T. Mount
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge Jane E. Magnus-Stinson.
Criminal. Remands for resentencing after the District Court denied the government’s motion for Mount to receive an additional one-level reduction following his guilty plea, citing Mount’s flight from charges. The additional reduction is mandatory once the government determines that the criteria spelled out in U.S.S.G. Section 3E1.1(b) are satisfied and it makes the necessary motion.

Opinions April 11, 2012

April 11, 2012
Indiana Court of Appeals
Anthony Wade v. Terex-Telelect, Inc.
Civil tort. Reverses jury verdict in favor of Terex-Telelect on Wade’s negligence claim under the Indiana Product Liability Act. Wade was prejudiced by the judge instructing the jury as to the rebuttable presumption under Indiana Code 34-20-5-1. Remands for a new trial. Judge Bradford concurs in part and dissents in part.

Opinions April 10, 2012

April 10, 2012
Indiana Court of Appeals
Salsbery Pork Producers, Inc., Richard K. Wilson, Tipton Co. Commissioners, Tipton Co. Highway Department, Chad Bergin, State of Indiana, Indiana Department of Transportation v. Latina Booth
Civil tort. Reverses trial court’s denial of motion for transfer of venue, holding that the state should have been dropped as a defendant because only Tipton County had control over the road where a crash occurred. Remands for proceedings consistent with its opinion that Tipton County is the preferred venue rather than Marion County.

Opinions April 9, 2012

April 9, 2012
Indiana Court of Appeals
In the Matter of the Involuntary Term. of the Parent-Child Rel. of L.J., and R.J., III; and V.A., and R.J. v. Marion Co. Dept. of Child Services and Child Advocates (NFP)
Juvenile. Affirms termination of parental rights for mother and father.

Opinions April 6, 2012

April 6, 2012
7th Circuit Court of Appeals
Beverly K. Copeland, et al. v. Penske Logistics LLC; Penske Logistics, Inc.; and Chauffeurs, Teamsters, Warehousemen and Helpers Local Union Number 135
U.S. Ditrict Court, Southern District of Indiana, Indianapolis Division, Chief Judge Richard L. Young.
Civil. In hybrid breach-of-contract/duty-of-fair representation suit, affirms District Court’s grant of summary judgment in favor of the defendants in the matter of fair representation. Citing lack of subject matter jurisdiction, remanded for dismissal of the claim that the union failed to engage in good faith bargaining.

Opinions April 5, 2012

April 5, 2012
Indiana Court of Appeals
GMAC Mortgage, LLC v. Ronald Glenn Dyer
Mortgage Foreclosure. Reverses trial court’s order that GMAC Mortgage rewrite an agreement about an FHA-insured loan that Ronald Dyer defaulted on. Appellate court held that under federal law and HUD regulations, deeds in lieu of foreclosure release the borrower from any mortgage obligation and in this case the standard language GMAC used was sufficient.

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  1. This new language about a warning has not been discussed at previous meetings. It's not available online. Since it must be made public knowledge before the vote, does anyone know exactly what it says? Further, this proposal was held up for 5 weeks because members Carol and Lucy insisted that all terms used be defined. So now, definitions are unnecessary and have not been inserted? Beyond these requirements, what is the logic behind giving one free pass to discriminators? Is that how laws work - break it once and that's ok? Just don't do it again? Three members of Carmel's council have done just about everything they can think of to prohibit an anti-discrimination ordinance in Carmel, much to Brainard's consternation, I'm told. These three 'want to be so careful' that they have failed to do what at least 13 other communities, including Martinsville, have already done. It's not being careful. It's standing in the way of what 60% of Carmel residents want. It's hurting CArmel in thT businesses have refused to locate because the council has not gotten with the program. And now they want to give discriminatory one free shot to do so. Unacceptable. Once three members leave the council because they lost their races, the Carmel council will have unanimous approval of the ordinance as originally drafted, not with a one free shot to discriminate freebie. That happens in January 2016. Why give a freebie when all we have to do is wait 3 months and get an ordinance with teeth from Day 1? If nothing else, can you please get s copy from Carmel and post it so we can see what else has changed in the proposal?

  2. Here is an interesting 2012 law review article for any who wish to dive deeper into this subject matter: https://web0.memphis.edu/law/currentstudents/mentalhealthjournal/1-2-203-Bird.pdf Excerpt: "Judicial interpretation of the ADA has extended public entity liability to licensing agencies in the licensure and certification of attorneys.49 State bar examiners have the authority to conduct fitness investigations for the purpose of determining whether an applicant is a direct threat to the public.50 A “direct threat” is defined as “a significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices or procedures, or by the provision of auxiliary aids or services as provided by § 35.139.”51 However, bar examiners may not utilize generalizations or stereotypes about the applicant’s disability in concluding that an applicant is a direct threat.52"

  3. We have been on the waiting list since 2009, i was notified almost 4 months ago that we were going to start receiving payments and we still have received nothing. Every time I call I'm told I just have to wait it's in the lawyers hands. Is everyone else still waiting?

  4. I hope you dont mind but to answer my question. What amendment does this case pretain to?

  5. Research by William J Federer Chief Justice John Marshall commented May 9, 1833, on the pamphlet The Relation of Christianity to Civil Government in the United States written by Rev. Jasper Adams, President of the College of Charleston, South Carolina (The Papers of John Marshall, ed. Charles Hobson, Chapel Hill: Univ. of North Carolina Press, 2006, p, 278): "Reverend Sir, I am much indebted to you for the copy of your valuable sermon on the relation of Christianity to civil government preached before the convention of the Protestant Episcopal Church in Charleston, on the 13th of February last. I have read it with great attention and advantage. The documents annexed to the sermon certainly go far in sustaining the proposition which it is your purpose to establish. One great object of the colonial charters was avowedly the propagation of the Christian faith. Means have been employed to accomplish this object, and those means have been used by government..." John Marshall continued: "No person, I believe, questions the importance of religion to the happiness of man even during his existence in this world. It has at all times employed his most serious meditation, and had a decided influence on his conduct. The American population is entirely Christian, and with us, Christianity and Religion are identified. It would be strange, indeed, if with such a people, our institutions did not presuppose Christianity, and did not often refer to it, and exhibit relations with it. Legislation on the subject is admitted to require great delicacy, because freedom of conscience and respect for our religion both claim our most serious regard. You have allowed their full influence to both. With very great respect, I am Sir, your Obedt., J. Marshall."