Opinions

Opinions Nov. 15, 2012

November 15, 2012
Indiana Court of Appeals
Derek Asklar and Pauline Asklar v. David Gilb, Paul Garrett Smith d/b/a P.H. One Trucking, Empire Fire and Marine Ins. Co., d/b/a Zurich; Travelers Ideminity Co. of America
02A03-1204-CT-170
Civil tort/insurance. Affirms in part and reverses in part the trial court’s grant of summary judgment in favor of Empire, holding that Indiana law rather than Georgia law should apply in the case, but determining that Empire’s uninsured/underinsured motorist coverage limit is still only $75,000, as the trial court ruled.
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Opinions Nov. 14, 2012

November 14, 2012
Indiana Court of Appeals
John Fox v. Nichter Construction Co., Inc.
03A01-1202-SC-52
Small claims/wages. Affirms in part, reverses in part and remands in part the dismissal of Fox’s wage claim with prejudice and orders the court to enter a dismissal of the claim with prejudice. A divided appeals court held that the trial court erred in dismissing the complaint because it lacked subject matter jurisdiction because Fox had pursued his claim through the Department of Labor under the Wage Claim statute before filing suit. The appeals court ordered the trial court to dismiss the case without prejudice for failure to state a claim upon which relief can be granted, including the failure to name the real party in interest. Fox may refile his claim setting forth the reassignment by the Department of Labor.
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Opinions Nov. 13, 2012

November 13, 2012
Indiana Supreme Court
D.C. v. J.A.C.
32S04-1206-DR-349
Domestic relation/modification of custody. Reverses Court of Appeals ruling that overturned a trial court modification of a custody order in favor of a child’s father. In a case involving a mother who was moving out of state, the Supreme Court held that the Court of Appeals erred by failing to apply a highly deferential standard of review to the trial court’s determination of a custody modification based on testimony regarding the best interests of the child.
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Opinions Nov. 9, 2012

November 9, 2012
Indiana Court of Appeals
Amerisafe Risk Services, Inc., and Leerae Riggs v. The Estate of Hazel D. Wadsack, deceased, by Ronald J. Wadsack as Personal Rep., and Ronald J. Wadsack, individually
88A01-1204-CT-144
Civil tort. Reverses trial court denial of plaintiff’s request for dismissal, holding that the court lacked jurisdiction in the case. The estate of an injured worker’s mother sued the worker’s compensation insurer, claiming that the mother died as a result of emotional distress over the insurer’s handling of her son’s claim. The appeals court held that the Wadsacks had not exhausted appeals through the Worker’s Compensation Board, which the court determined had proper jurisdiction because the Wadsacks’ claim was derivative of their son’s claims for benefits.
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Opinions Nov. 8, 2012

November 8, 2012
Indiana Court of Appeals
Jerome Michael Burton v. State of Indiana
45A03-1201-CR-6
Criminal. Reverses denial of motion to dismiss the charge of failure to register as a sex offender. Remands with instructions. Wallace applies and the ex post facto provision of the Indiana Constitution prevents the application of Indiana’s Sex Offender Registry Act to require Burton, a resident of Indiana, to register as a sex offender for an offense committed in Illinois in 1987.
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Opinions Nov. 7, 2012

November 7, 2012
Indiana Supreme Court
Michael Kucholick v. State of Indiana
12S02-1211-CR-630
Criminal. Justices grant transfer and order Kucholick’s sentence for Class C felony criminal recklessness and Class B misdemeanor criminal mischief revised to the advisory term of four years, all executed. Summarily affirms Court of Appeals decision in all respects. Chief Justice Dickson dissents, believing the trial court’s sentence of seven years should be affirmed.
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Opinions Nov. 6, 2012

November 6, 2012
Indiana Supreme Court
State of Indiana v. Elvis Holtsclaw

49S02-1205-CR-264
Criminal. Reverses dismissal of state’s notice of appeal and remands to the Court of Appeals for consideration of its merits, holding that the appeal is timely under Appellate Rule 9.
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Opinions Nov. 5, 2012

November 5, 2012
Indiana Court of Appeals
Steven E. Miles, a/k/a Robert Dutcher v. State of Indiana (NFP)
49A02-1204-PC-310
Post conviction. Affirms denial of petition for post-conviction relief.
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Opinions Nov. 2, 2012

November 2, 2012
Indiana Court of Appeals
Joshua A. Bostic v. State of Indiana
12A02-1202-CR-154
Criminal. Affirms convictions of Cass C felony attempted battery by means of a deadly weapon and criminal recklessness; Class D felony arson; Class A misdemeanor criminal mischief; and Class B misdemeanor criminal mischief, holding that Bostic waived his right to appeal under Criminal Rule 4(C) by failing to object to trial delays before the trial court. The court also found he likewise waived his right to appeal the process for appointing a special judge. Remands to the trial court to correct the sentencing order, abstract of judgment, and chronological case summary to reflect that Bostic’s 12-year habitual offender enhancement is an enhancement to his sentence for felony criminal recklessness, and not a separate conviction.
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Opinions Nov. 1, 2012

November 1, 2012
Indiana Court of Appeals
Leslie Bridges v. Veolia Water Indianapolis, LLC, Veolia Water North America Operating Service, LLC, and The City of Indianapolis, Dept. of Waterworks
49A02-1112-CC-1097
Civil collection. Affirms trial court dismissal of Bridges’ class action filed after her water was turned off for nonpayment, finding Bridges failed to exhaust the administrative remedies available at the Indiana Utilities Regulatory Commission. She had to seek those remedies before seeking judicial relief. Concludes that I.C. 8-1-2-68 through -70 grant the IURC exclusive jurisdiction over Bridges’ claim regardless of whether it is treated as a challenge to and request for reimbursement of the reconnect fee or as a challenge to the allegedly improper act of terminating her residential water service in a manner inconsistent with the terms of the tariff.
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Opinions Oct. 31, 2012

October 31, 2012
Indiana Court of Appeals
Robertson Fowler v. State of Indiana
49A05-1202-PC-68
Post conviction. Affirms denial of petition for post-conviction relief. Fowler received a benefit at the time he entered into his plea bargain, so he may not now challenge the sentence as illegal.
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Opinions Oct. 30, 2012

October 30, 2012
Indiana Supreme Court
Lisa J. Kane v. State of Indiana
30S04-1206-CR-372
Criminal. Reverses conviction of Class D felony receiving stolen property and remands for retrial. The trial court improperly instructed the jury on the mental state required to convict Kane.

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Opinions Oct. 29, 2012

October 29, 2012
Indiana Court of Appeals
Betty J. Angel v. Kent H. Powelson and Marjorie A. Powelson
82A04-1205-PL-292
Civil plenary. Affirms order granting part of the Powelsons’ summary judgment motion on Angel’s claims of reformation of a deed and adverse possession. The undisputed evidence shows that both Angel and the Powelsons were granted an easement to use the roadway and both used it for ingress and egress purposes. The evidence also supports Angel’s claim for reformation of a deed is barred by laches.
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Opinions Oct. 26, 2012

October 26, 2012
Indiana Court of Appeals
In Re the Involuntary Term. of the Parent-Child Rel. of A.P.: T.P. v. The Indiana Dept. of Child Services and Child Advocates, Inc. (NFP)
49A02-1201-JT-28
Juvenile termination of parental rights. Affirms termination of father’s parental rights.
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Opinions Oct. 25, 2012

October 25, 2012
Indiana Court of Appeals
State Farm Mutual Automobile Insurance Company v. Ken Nunn Law Office
49A02-1202-CT-68
Civil tort. Reverses denial of State Farm’s motion for summary judgment on the law office’s attempt to recover attorney fees and remands for further proceedings. The law office may not seek payment of a former client’s attorney fees from State Farm under an equitable attorney fee lien or based on a theory of quantum meruit.
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Opinions Oct. 24, 2012

October 24, 2012
Indiana Court of Appeals
Leslie Ann Grider v. State of Indiana
48A02-1112-CR-1156
Criminal. Reverses 19-year sentence following guilty pleas to two counts of Class C felony forgery, four counts of Class D felony theft, and two counts of Class D felony check fraud. The language of the plea agreement indicates the parties’ intention that the trial court would impose concurrent sentences on all counts regardless of the separate cause numbers. Orders Grider’s sentences to be concurrent for a total of eight years.
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Opinions Oct. 23, 2012

October 23, 2012
7th Circuit Court of Appeals
Planned Parenthood of Indiana, Inc., et al., v. Commissioner of the Indiana State Department of Health, et al.
11-2464
Civil. Reverses in part and affirms in part, affirming the district court injunction against I.C. 5-22-17-5.5(b) that bars state or federal funding for “any entity that performs abortions or maintains or operates a facility where abortions are performed.” The circuit court held that Medicaid grants individual rights under federal civil rights protections, but reversed the district court with regard to federal block grant funds, holding that no such actionable protection exists.
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Opinions Oct. 22, 2012

October 22, 2012
Indiana Court of Appeals
Wayne Evans v. Duke Energy Indiana, Inc. (NFP)
10A01-1111-PL-539
Civil plenary. Affirms trial court injunction prohibiting construction in a utility easement.
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Opinions Oct. 19, 2012

October 19, 2012
Indiana Court of Appeals
Rodney Killebrew II v. State of Indiana

34A02-1204-CR-303
Criminal. Reserves a conviction of possession of marijuana after concluding the trial court abused its discretion when it admitted evidence obtained at an illegal traffic stop. The court found the police officer had no grounds to stop the driver because the continuous use of a turn signal is not a traffic violation and the officer’s actions did not fall within his community caretaking function.
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Opinions Oct. 18, 2012

October 18, 2012
Indiana Court of Appeals
John A. Dugan v. State of Indiana
49A05-1202-PC-50
Post conviction. Reverses denial of petition for post-conviction relief. The court erred when it denied Dugan’s claim that Mills applied retroactively to his habitual offender enhancement. Remands for the court to vacate that enhancement.
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Opinions Oct. 17, 2012

October 17, 2012
Indiana Supreme Court
J.M. v. Review Board of the Indiana Dept. of Workforce Development and T.C.
Agency appeal. Finds the court may rely on a different statutory ground of a just cause finding than the one relied upon by the review board when, as here, the review board’s findings of fact clearly establish the alternate subsection’s applicability. Affirms the review board under Indiana Code section 22-4-15-1(d)(5), that J.M. refused to obey instructions, and was thus fired for just cause. Affirms denial of unemployment benefits.
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Opinions Oct. 16, 2012

October 16, 2012
Indiana Court of Appeals
Charles Mitchell v. State of Indiana
49A02-1202-CR-125
Criminal. Affirms conviction and sentence for Class D felony theft. The evidence is sufficient to show Mitchell and the other defendants knowingly exerted unauthorized control over the apartment complex’s water heater with the intent to deprive the apartments of any part of its value or use. The advisory sentence imposed, with all but 60 days suspended to probation, was not inappropriate.
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Opinions Oct. 15, 2012

October 15, 2012
Indiana Court of Appeals
Ted L. Cecil, Cecil Septic LLC, and Max Haas Company, LLC v. Fisk Excavating, Plumbing and Septic Services, Inc., Dennis Fisk, Dennis Fisk, Jr.,Michelle Fisk, Bob Murphy, et al. (NFP)
33A05-1112-MI-686
Miscellaneous. Affirms summary judgment in favor of Fisk Excavating and other defendants on the plaintiffs’ legal malpractice claim. Remands for determination of Gregg Morelock’s appellate attorney fees.
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Opinions Oct. 12, 2012

October 12, 2012
Indiana Court of Appeals
Jeffrey Riggs and Mark Ashmann v. Mark S. Weinberger, M.D., Mark Weinberger, M.D., P.C., Merrillville Center for Advanced Surgery, LLC, and Nose and Sinus Center, LLC
45A03-1109-CT-394
Civil tort. Reaffirms original opinion in all respects, and finds that a trial court when confronted with the facts and circumstances like those in this case, may compel an involuntary psychiatric examination in accordance with Ind. Trial Rule 35. There is no requirement that the court must do so.
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Opinions Oct. 11, 2012

October 11, 2012
7th Circuit Court of Appeals
Edward Jeroski, doing business as USA Cleaning Service and Building Maintenance v. Federal Mine Safety and Health Review Commission and U.S. Secretary of Labor
11-3687
Agency review. Denies USA Cleaning’s petition to review the order of the Federal Mine Safety and Health Review Commission, which affirmed the denial of an application for attorney fees under the Equal Access to Justice Act. The meaning of “prevailing party” under the act does not apply to USA Cleaning, which was the subject of an order by the Federal Mine Safety and Health Administration that was later dropped.
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  1. It was mentioned in the article that there have been numerous CLE events to train attorneys on e-filing. I would like someone to provide a list of those events, because I have not seen any such events in east central Indiana, and since Hamilton County is one of the counties where e-filing is mandatory, one would expect some instruction in this area. Come on, people, give some instruction, not just applause!

  2. This law is troubling in two respects: First, why wasn't the law reviewed "with the intention of getting all the facts surrounding the legislation and its actual impact on the marketplace" BEFORE it was passed and signed? Seems a bit backwards to me (even acknowledging that this is the Indiana state legislature we're talking about. Second, what is it with the laws in this state that seem to create artificial monopolies in various industries? Besides this one, the other law that comes to mind is the legislation that governed the granting of licenses to firms that wanted to set up craft distilleries. The licensing was limited to only those entities that were already in the craft beer brewing business. Republicans in this state talk a big game when it comes to being "business friendly". They're friendly alright . . . to certain businesses.

  3. Gretchen, Asia, Roberto, Tonia, Shannon, Cheri, Nicholas, Sondra, Carey, Laura ... my heart breaks for you, reaching out in a forum in which you are ignored by a professional suffering through both compassion fatigue and the love of filthy lucre. Most if not all of you seek a warm blooded Hoosier attorney unafraid to take on the government and plead that government officials have acted unconstitutionally to try to save a family and/or rescue children in need and/or press individual rights against the Leviathan state. I know an attorney from Kansas who has taken such cases across the country, arguing before half of the federal courts of appeal and presenting cases to the US S.Ct. numerous times seeking cert. Unfortunately, due to his zeal for the constitutional rights of peasants and willingness to confront powerful government bureaucrats seemingly violating the same ... he was denied character and fitness certification to join the Indiana bar, even after he was cleared to sit for, and passed, both the bar exam and ethics exam. And was even admitted to the Indiana federal bar! NOW KNOW THIS .... you will face headwinds and difficulties in locating a zealously motivated Hoosier attorney to face off against powerful government agents who violate the constitution, for those who do so tend to end up as marginalized as Paul Odgen, who was driven from the profession. So beware, many are mere expensive lapdogs, the kind of breed who will gladly take a large retainer, but then fail to press against the status quo and powers that be when told to heel to. It is a common belief among some in Indiana that those attorneys who truly fight the power and rigorously confront corruption often end up, actually or metaphorically, in real life or at least as to their careers, as dead as the late, great Gary Welch. All of that said, I wish you the very best in finding a Hoosier attorney with a fighting spirit to press your rights as far as you can, for you do have rights against government actors, no matter what said actors may tell you otherwise. Attorneys outside the elitist camp are often better fighters that those owing the powers that be for their salaries, corner offices and end of year bonuses. So do not be afraid to retain a green horn or unconnected lawyer, many of them are fine men and woman who are yet untainted by the "unique" Hoosier system.

  4. I am not the John below. He is a journalist and talk show host who knows me through my years working in Kansas government. I did no ask John to post the note below ...

  5. "...not those committed in the heat of an argument." If I ever see a man physically abusing a woman or a child and I'm close enough to intercede I will not ask him why he is abusing her/him. I will give him a split second to cease his attack and put his hands in the air while I call the police. If he continues, I will still call the police but to report, "Man down with a gunshot wound,"instead.

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