Opinions

Opinions Feb. 22, 2011

February 22, 2011
7th Circuit Court of Appeals
United States of America v. Roger D. Slone
09-4089
U.S. District Court, Northern District of Indiana, Hammond Division, Judge Rudy Lozano.
Criminal. Affirms conviction of conspiracy to distribute marijuana and sentence of 120 months in prison. The search incident to his arrest was reasonable and the vehicle evidence was properly admitted against him.
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Opinions Feb. 21, 2011

February 21, 2011
Indiana Court of Appeals
Joshua Burke v. State of Indiana
49A02-1006-CR-660
Criminal. Affirms conviction of Class B felony burglary. Indiana Code Section 35-43-2-1(1)(B)(ii), which enhances burglary from a Class C felony to Class B felony if the building or structure burgled is used for religious worship, does not violate the Establishment Clause of the First Amendment or Article 1, Section 4 of the Indiana Constitution.
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Opinions Feb. 18, 2011

February 18, 2011
Indiana Court of Appeals
Term. of Parent-Child Rel. of M.W.; M.W. v. I.D.C.S.
32A01-1007-JT-322
Juvenile. Reverses termination of parental rights. Given the father’s efforts to comply with the amended plan and his release from incarceration soon after the hearing date, the trial court’s findings aren’t supported by clear and convincing evidence.
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Opinions Feb. 17, 2011

February 17, 2011
Indiana Court of Appeals
Ahmad Foster v. State of Indiana (NFP)
49A02-1005-CR-579
Criminal. Affirms denial of motion to modify sentence.
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Opinions Feb. 16, 2011

February 16, 2011
7th Circuit Court of Appeals
Jeff Whitely, et al. v. Anthony Moravec, et al.
09-3302
U.S. District Court, Southern District of Indiana, Indianapolis Division. Judge David F. Hamilton.
Civil. Plaintiffs sued an Indiana company incorporated in New York to satisfy the penalty claims after the Indiana company entered into bankruptcy and was late paying wages and fringe benefits. Affirms the District Court correctly concluded that New York Bus. Corp. L. Section 630(a) doesn’t make defendants liable for a penalty under Indiana law.
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Opinions Feb. 15, 2011

February 15, 2011
Indiana Court of Appeals
K.D., et al. Alleged to be C.H.I.N.S.; S.S. v. Indiana Dept. of Child Services, et al.
49A02-1004-JC-462
Juvenile. Reverses and remands juvenile court’s adjudication that the appellant-respondent’s stepchildren were children in need of services. Concludes that where, as here, one party admits to CHINS allegations while another denies them, due process entitles the contesting party to a fact-finding hearing and adjudication. The mother admitted to the allegations in the petition, but the stepfather denied the allegations and requested a fact-finding hearing.
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Opinions Feb. 14, 2011

February 14, 2011
7th Circuit Court of Appeals
Cynthia Kartman, et al. v. State Farm Mutual Automobile Insurance Co., et al.
09-1725
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge William T. Lawrence.
Civil. Reverses District Court ruling that a class claim for injunctive relief could proceed under Federal Rules of Civil Procedure Rule 23(b)(2) and certification of a class to determine whether State Farm should be required to re-inspect policyholders’ roofs pursuant to a uniform and objective standard. There is no contract or tort-based duty requiring the insurer to use a particular standard for assessing hail damage. Also, the requested injunction is neither appropriate nor final.
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Opinions Feb. 11, 2011

February 11, 2011
7th Circuit Court of Appeals
Mouhamadou M. Sow v. Fortville Police Department, et al.
10-2188
U.S. District Court, Southern District of Indiana, Indianapolis Division, Chief Judge Richard L. Young
Civil. Affirms District Court’s grant of summary judgment to the Fortville Police Department, Officer Michael Fuller of the Fortville Police Department, and the McCordsville Police Department. Sow’s action was brought under 42 U.S.C. sections 1983, 1985, and 1986 after he was arrest for forgery but the charges were later dropped. Sow also alleged numerous state law claims, asserting that the District Court had supplemental jurisdiction over those claims.
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Opinions Feb. 10, 2011

February 10, 2011
Indiana Supreme Court
Killbuck Concerned Citizens Association v. J.M. Corporation and Ralph Reed
48S00-1003-PL-158
Civil plenary. Reverses trial court grant of J.M. Corporation’s motion for summary judgment on the grounds that Indiana Code Section 13-20-2-11, which would require further review and approval of zoning, violated the Indiana Constitution and remands for further proceedings. Declines to decide the constitutional issue, but finds because J.M. Corporation’s facilities accepted wasted before April 1, 2008, Indiana Code Section 13-20-2-11 doesn’t apply.
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Opinions Feb. 9, 2011

February 9, 2011
Indiana Supreme Court
Indiana Dept. of State Revenue v. Belterra Resort Indiana, LLC
49S10-1010-TA-519
Tax. Grants rehearing to address the question of whether Belterra is subject to a tax penalty. Remands to the Indiana Tax Court to determine the timeliness of Belterra’s argument and, if timely, whether Belterra is subject to the penalty and, if so, whether the penalty should be waived. Affirms original opinion in all other respects. Justice Dickson concurs in result, believing the rehearing should also be granted to revisit the previous decision on the “step transaction” issue.
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Opinions Feb. 8, 2011

February 8, 2011
Indiana Supreme Court
Mariea L. Best v. Russell C. Best
06S05-1102-CV-73
Civil. Affirms trial court grant of primary physical custody of M.B. to father. The trial court made the necessary findings that there has been a substantial change in one or more of the statutory factors and that the modification of physical custody is in M.B.’s best interests. Reverses the finding that the mother is in contempt. Justice Sullivan dissented and would deny transfer. Justice David did not participate.
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Opinions Feb. 7, 2011

February 7, 2011
Ricky E. Graham v. State of Indiana
22A01-1008-PC-392
Post conviction. Affirms post-conviction relief court properly rejected Graham’s claims of an inadequate factual basis or ineffective assistance of appellate counsel, and claims of fundamental error. The PCR court’s findings don’t support its rejection of his claim that his plea was illusory or involuntary. Remands for a new PCR hearing to address that issue and the question of the effectiveness of his trial counsel on the grounds raised in his PCR petition, should he resubmit his subpoena request for his trial counsel to appear at the new hearing.
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Opinions Feb. 4, 2011

February 4, 2011
Indiana Court of Appeals
Terry Likens, et al. v. Prickett's Properties, Inc., et al.
43A03-1008-PL-455
Civil plenary. Affirms summary judgment in favor of Prickett’s Properties Inc. and Realtor Jack Stump in the Likenses’ suit alleging negligence/breach of agency duty. According to Indiana Code Chapter 25-34.1-10, the only duty Stump owed the sellers is to treat them honestly and not knowingly give them false information. The Likenses do not allege on appeal that he breached this duty.
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Opinions Feb. 3, 2011

February 3, 2011
Indiana Supreme Court
Clifton Mauricio v. State of Indiana
02S03-1009-PC-501
Post conviction. Reverses denial of petition for post-conviction relief and remands for re-sentencing. The Supreme Court cannot say that the trial court would have sentenced Mauricio to 50 years notwithstanding its reference to a statute that was later held to be inapplicable.
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Opinions Feb. 2, 2011

February 2, 2011
The Indiana Supreme Court, Court of Appeals, and Tax Court are closed today due to the weather.
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Opinions Feb. 1, 2011

February 1, 2011
7th Circuit Court of Appeals
United States of America v. Derrick L. Bullock
10-2238
U.S. District Court, Northern District of Indiana, Fort Wayne Division, Judge Theresa L. Springmann.
Criminal. Bullock pled guilty to possession with intent to distribute at least five grams but less than fifty grams of cocaine base in violation of 21 U.S.C. § 841(a)(1). His plea was conditioned on his ability to appeal the District Court’s denial of his motion to suppress evidence of the crack that led to his conviction. Affirms District Court ruling there was reasonable suspicion to detain Bullock during the search, probable cause existed to arrest Bullock for visiting a common nuisance under Indiana law after police found marijuana in plain view and other evidence of recurrent and widespread drug activity within the residence. His detention was lawful under principles set forth in Terry v. Ohio, and the subsequent arrest was supported by probable cause.
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Opinions Jan. 31, 2011

January 31, 2011
Indiana Court of Appeals
Cynthia L. Foley v. Robert L. Schwartz and Danny L. Collins
78A04-1005-CT-305
Civil tort. Reverses grant of Schwartz’s motion to dismiss Foley’s complaint following an ATV accident on Collins’ property. The trial court erred when it granted Schwartz’s motion to dismiss for lack of personal jurisdiction. Remands for further proceedings.
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Opinions Jan. 28, 2011

January 28, 2011
Indiana Court of Appeals
Keith Eberle v. State of Indiana
58A01-1003-CR-105
Criminal. Affirms convictions of Class D felony intimidation, Class C felony stalking, and two counts of Class B misdemeanor harassment due to text messages and phone calls from Eberle to an employer-issued cell phone that belonged to an Ohio County jail matron.
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Opinions Jan. 27, 2011

January 27, 2011
Indiana Court of Appeals
Tony E. Bennett v. State of Indiana (NFP)
25A03-1008-CR-422
Criminal. Affirms sentence following guilty plea to three counts of Class D felony theft.
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Opinions Jan. 26, 2011

January 26, 2011
7th Circuit Court of Appeals
United States of America v. Ty Brock
10-2385
U.S. District Court, Northern District of Indiana, Hammond Division, Chief Judge Philip P. Simon.
Criminal. Affirms denial of motion to suppress items found in Brock’s car during a checkpoint stop. Because the checkpoint was neither objectively nor subjectively intrusive in any way that would outweigh the government’s interest in operating it, the checkpoint stop didn’t violate his Fourth Amendment rights.
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Opinions Jan. 25, 2011

January 25, 2011
Indiana Court of Appeals
Adoption of L.C.E.; D.H. v. J.H. and J.D.E.
47A05-1008-AD-474
Adoption. Reverses adoption of L.C.E. by his maternal grandfather J.D.E. The stepfather, D.H., had custody of L.C.E. and his consent is required for the adoption of L.C.E. The trial court erred in granting the grandfather’s petition prior to the expiration of the 30 days provided for objection to be filed and prior to receiving D.H.’s properly filed objection.
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Opinions Jan. 24, 2011

January 24, 2011
7th Circuit Court of Appeals
Applications of Heraeus Kulzer, GmbH, for orders compelling discovery for use in a foreign proceeding v. Biomet Inc., et al.
09-2858, 10-2639
U.S. District Court, Northern District of Indiana, South Bend Division, Judge Robert L. Miller Jr.
Civil. Reverses denial of applications to compel discovery for use in a lawsuit pending in a foreign court. The District Court committed two serious legal errors in its denial – concluding Heraeus Kulzer was trying to circumvent German law and turning down the company’s discovery request flat. Remands for further proceedings consistent with the opinion.
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Opinions Jan. 21, 2011

January 21, 2011

7th Circuit Court of Appeals
Maria Tara Sutherland v. Wal-Mart Stores Inc.
10-2214
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge William T. Lawrence.
Civil. Affirms summary judgment in favor of Wal-Mart on Sutherland’s hostile work environment and negligent infliction of emotional distress claims. She did not present evidence that would allow a jury to conclude Wal-Mart is liable for the assault committed against her by Aguas.

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Opinions Jan. 20, 2011

January 20, 2011
Indiana Court of Appeals
Nathaniel Williams v. State of Indiana (NFP)
49A02-1005-CR-466
Criminal. Affirms convictions of Class B felony dealing in a narcotic drug and Class A felony dealing in a narcotic drug.
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Opinions Jan. 19, 2011

January 19, 2011
7th Circuit Court of Appeals
Anthony L. Smith v. Gilbert Peters, et al.
10-1013
U.S. District Court, Southern District of Indiana, Evansville Division, Chief Judge Richard Young.
Civil. Reverses District Court’s dismissal of Smith’s civil rights suit alleging prison employees violated his First and Eighth Amendment rights. Prison officials who recklessly expose a prisoner to a substantial risk of a serious physical injury may have violated a prisoner's Eighth Amendment rights and therefore are subject to those remedies that aren’t barred by 42 U.S.C. Section 1997e(e). Also if the facts alleged in the complaint are true, Smith may have been punished for complaining about mistreatment. Remands for further proceedings.
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  1. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

  2. As an adoptive parent, I have to say this situation was as shameful as it gets. While the state government opens its wallet to the Simons and their friends, it denied payments to the most vulnerable in our state. Thanks Mitch!

  3. We as lawyers who have given up the range of First amendment freedom that other people possess, so that we can have a license to practice in the courts of the state and make gobs of money, that we agree to combat the hateful and bigoted discrimination enshrined in the law by democratic majorities, that Law Lord Posner has graciously explained for us....... We must now unhesitatingly condemn the sincerely held religious beliefs of religiously observant Catholics, Muslims, Christians, and Jewish persons alike who yet adhere to Scriptural exhortations concerning sodomites and catamites..... No tolerance will be extended to intolerance, and we must hate the haters most zealously! And in our public explanations of this constitutional garbledygook, when doing the balancing act, we must remember that the state always pushes its finger down on the individualism side of the scale at every turn and at every juncture no matter what the cost to society.....to elevate the values of a minority over the values of the majority is now the defining feature of American "Democracy..." we must remember our role in tricking Americans to think that this is desirable in spite of their own democratically expressed values being trashed. As a secular republic the United States might as well be officially atheist, religious people are now all bigots and will soon be treated with the same contempt that kluckers were in recent times..... The most important thing is that any source of moral authority besides the state be absolutely crushed.

  4. In my recent article in Indiana Lawyer, I noted that grass roots marketing -- reaching out and touching people -- is still one of the best forms of advertising today. It's often forgotten in the midst of all of today's "newer wave" marketing techniques. Shaking hands and kissing babies is what politicians have done for year and it still works. These are perfect examples of building goodwill. Kudos to these firms. Make "grass roots" an essential part of your marketing plan. Jon Quick QPRmarketing.com

  5. Hi, Who can I speak to regarding advertising today? Thanks, Gary

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