Opinions

Opinions Jan. 22, 2013

January 22, 2013
Indiana Court of Appeals
Lula L. Jenkins, et al. v. South Bend Community School Corp.
71A03-1206-PL-260
Civil plenary.  Reverses summary judgment for South Bend Community School Corp. on Jenkins’ action seeking an independent determination of whether she was discharged for just cause from her position as a bus driver. The advisory nature of the arbitrator’s award allows the non-prevailing party, here SBCSC, to reject the award, thus triggering judicial review, either under the Uniform Arbitration Act’s provisions or for a determination whether the facts found by the arbitrator support the award. Remands for further proceedings.
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Opinions Jan. 18, 2013

January 18, 2013
7th Circuit Court of Appeals
Linda K. Roddy v. Michael J. Astrue, Commissioner of Social Security
12-1682
U.S. District Court, Southern District of Indiana, New Albany Division, Judge Tanya Walton Pratt.
Civil. Vacates judgment of the District Court and remands Roddy’s case for disability insurance benefits to the Social Security Administration for further proceedings. Finds the administrative law judge made a number of errors in his consideration of the record, in which he denied her benefits.
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Opinions Jan. 17, 2013

January 17, 2013
Indiana Court of Appeals
Daniel Brewington v. State of Indiana
15A01-1110-CR-550
Criminal. Reverses convictions and sentences for intimidation of Dr. Edward Connor and intimidation of Heidi Humphrey and remands with instructions to vacate, which does not alter Daniel Brewington’s aggregate sentence. Affirms conviction for intimidation of Judge James Humphrey and for attempted obstruction of justice relating to Connor. Affirms in all other respects.
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Opinions Jan. 16, 2013

January 16, 2013
Indiana Court of Appeals
Nick Domaschko and Edwina Domaschko, and their Respective Trusts, et al. v. State of Indiana
58A01-1206-PL-261
Civil plenary. Affirms trial court’s order of immediate appropriation and appointment of appraisers. The trial court properly determined that the state, through the Indiana Department of Transportation, was entitled by law to acquire the Domaschkos’ property.
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Opinions Jan. 15, 2013

January 15, 2013
Indiana Supreme Court
Timothy W. Plank, Individually and as Personal Representative of the Estate of Debra L. Plank, Deceased v. Community Hospitals of Indiana, Inc., and State of Indiana
49S04-1203-CT-135
Civil tort. Affirms trial court denial of Timothy Plank’s request to hold an evidentiary hearing to challenge the constitutionality of the Medical Malpractice Act. Plank forfeited his opportunity to conduct such a hearing.
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Opinions Jan. 14, 2013

January 14, 2013
Indiana Court of Appeals
Deantoine M. Harris v. State of Indiana (NFP)
02A03-1204-CR-185
Criminal. Affirms conviction of Class B felony burglary and adjudication as a habitual offender.
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Opinions Jan. 11, 2013

January 11, 2013
Indiana Court of Appeals
Dejuan T. Lowe v. State of Indiana (NFP)
71A03-1206-CR-264
Criminal. Dismisses as untimely Lowe’s appeal of sentence following guilty pleas to multiple felony charges of burglary and attempted burglary.
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Opinions Jan. 10, 2013

January 10, 2013
Indiana Supreme Court
Andre Gonzalez v. State of Indiana
45S03-1206-CR-307
Criminal. Reverses denial of petition to remove the lifetime registration requirement and remands for further proceedings. Finds the Ex Post Facto Clause of the Indiana Constitution prohibits retroactive application of a lifetime registration requirement for Gonzalez, whose requirement to register for life was added while he was completing the 10-year required registration as a sex offender that was in place at the time due to his child solicitation conviction. Justice Rucker concurs in result.
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Opinions Jan. 9, 2013

January 9, 2013
7th Circuit Court of Appeals
United States of America v. Michael D. Weir
11-3321
U.S. District Court, Southern District of Indiana, Terre Haute Division, Judge Jane Magnus-Stinson.
Criminal. All the judges on the original panel have voted to deny the petition for rehearing and no judge in regular active service asked for a vote on the petition for rehearing en banc. The petition is therefore denied. Weir complained that his Fourth Amendment rights were violated when a police officer seized $6,655 from him during a traffic stop.

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Opinions Jan. 8, 2013

January 8, 2013
7th Circuit Court of Appeals
West Bend Mutual Insurance Co. v. Arbor Homes LLC
12-2274
U.S. District Court, Southern District of Indiana, Indianapolis Division, Magistrate Judge Tim A Baker. Affirms District Court ruling in favor of West Bend Mutual Insurance that it has no duty to defend or indemnify Arbor Homes. Arbor Homes agreed to a settlement with homeowners without obtaining the prior consent of West Bend after raw sewage backed up into their brand new home.
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Opinions Jan. 7, 2013

January 7, 2013
Indiana Court of Appeals
Term. of the Parent-Child Rel. of: C.A. & Z.A. (Minor Children), and H.A. (Father) v. The Indiana Dept. of Child Services (NFP)
41A04-1205-JT-407
Juvenile. Affirms termination of father’s parental rights.
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Opinions Jan. 4, 2013

January 4, 2013
Indiana Court of Appeals
State of Indiana v. Daniel E. Riley
78A05-1206-CR-311
Criminal. Reverses dismissal of Class B misdemeanor battery charges. Because the information was proper even with Indiana Gaming Agent Audrey Smoot as an affiant, and because there appears to have been no other basis for the dismissal (other than possibly a mistaken belief that an unauthorized investigation would affect the information), the trial court abused its discretion in granting the dismissal.
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Opinions Jan. 3, 2013

January 3, 2013
7th Circuit Court of Appeals
United States of America v. Juan Ramirez-Fuentes
12-1494
U.S. District Court, Northern District of Indiana, Hammond Division, Chief Judge Philip P. Simon.
Criminal. Affirms convictions and 295-month sentence for possession with the intent to distribute 500 grams or more of methamphetamine and possessing firearms in furtherance of a drug-trafficking crime. Finds no plain error in admitting testimony about the possession of firearms, but testimony classifying the drug as “Mexican” methamphetamine shouldn’t have been allowed. Finds judge considered family situation when sentencing Ramirez-Fuentes.
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Opinions Dec. 31, 2012

January 2, 2013
Indiana Court of Appeals
Indiana Public Employee Retirement Fund v. Paul Bryson
49A04-1201-MI-2
Miscellaneous. Affirms original opinion that Bryson’s on-duty injury was a “covered impairment” making him eligible for Class 1 impairment disability benefits even though he had a pre-existing condition.
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Opinions Dec. 28, 2012

December 28, 2012
Indiana Court of Appeals
James M. Brinkley and Stephanie L. Brinkley v. Michael Haluska, P.E., d/b/a Retro Tech, et al.
32A01-1204-MI-181
Miscellaneous. Affirms trial court’s summary judgment that Donald Gindelberger is a good faith purchaser for value of a 1965 Chevrolet Corvette because the Brinkleys were in the best position to prevent the allegedly fraudulent sale and did not do so. Also, it concluded the BMV is immune from liability.
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Opinions Dec. 27, 2012

December 27, 2012
7th Circuit Court of Appeals
United States of America v. Fairly W. Earls
11-3347
U.S. District Court, Northern District of Indiana, Hammond Division. Judge Joseph S. Van Bokkelen.
Criminal. Affirms conviction of making a false statement on a passport application, aggravated identity theft and knowingly transferring a stolen identification document. Affirms the admission of certain evidence at Earls’ trial and finds the District Court did not err in its calculation of his offense level.
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Opinions Dec. 21, 2012

December 21, 2012
Indiana Court of Appeals
Steven E. Malloch v. State of Indiana
17A03-1201-CR-37
Criminal. Affirms conviction of Class A felony child molesting for an incident involving his stepdaughter. There was no prosecutorial misconduct and the trial court did not err by admitting Malloch’s apology letter to C.P. Although Malloch did not receive a perfect trial, the appellate judges are confident he received a fair trial.
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Opinions Dec. 20, 2012

December 20, 2012
7th Circuit Court of Appeals
Joshua Beller, a minor, by his next friend and mother, Melissa Welch, et al. v. Health and Hospital Corp. of Marion County Ind., d/b/a Wishard Memorial Hospital d/b/a Wishard Ambulance Service
11-3691
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge Tanya Walton Pratt.
Civil. Affirms summary judgment for the defendants on the plaintiffs lawsuit alleging violation of the Emergency Medical Treatment and Active Labor Act by failing to stabilize Welch and her son during an emergency medical situation. Because the Wishard ambulance was operating under the EMS protocol at the time the plaintiffs were in it, the plaintiffs had not come to the Wishard emergency department under the EMTALA, and the plaintiffs’ claim cannot succeed.
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Opinions Dec. 19, 2012

December 19, 2012
7th Circuit Court of Appeals
Norman W. Bernstein, et al. v. Patricia A. Bankert, et al. and Auto Owners Mutual Insurance Co.
11-1501, 11-1523
U.S. District Court, Southern District of Indiana, Indianapolis Division, Chief Judge Richard L. Young.
Civil. Reverses dismissal of counts I, II, III and VII. In Count I, the trustees have made a timely CERCLA claim, under 42 U.S.C. § 9607(a)(4)(B), to recover costs incurred pursuant to the 2002 AOC. The trustees’ Count II “companion claim” for a declaratory judgment of CERCLA liability is therefore also reinstated. Finds that the Indiana ELA claim contained in Count III is timely, and that the declaratory judgment claim contained in Count VII is not moot. The District Court committed no abuse of discretion in its handling of the summary judgment briefing process. Finally, affirms the District Court’s denial of Auto Owners’ motion for summary judgment on preclusion grounds. The trustees’ suit is reinstated and remanded for further proceedings consistent with this opinion.
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Opinions Dec. 18, 2012

December 18, 2012
Indiana Court of Appeals
Timothy Schepers v. State of Indiana
22A01-1201-CR-39
Criminal. Affirms on interlocutory appeal a trial court denial of a motion to dismiss several drug charges and a Class C felony count of neglect of a dependent. The court held that Schepers’ filing of a pro se motion for a speedy trial and motion to dismiss for violation of Criminal Rule 4 were filed while he was represented by a public defender and that he did not clearly and unequivocally assert his right to self-representation. Remands cause for trial.
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Opinions Dec. 17, 2012

December 17, 2012
Indiana Court of Appeals
Charles Knight v. Allstate Property and Casualty Ins. Co. (NFP)
02A05-1206-PL-290
Civil plenary. Affirms summary judgment in favor of Allstate.
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Opinions Dec. 14, 2012

December 14, 2012
Indiana Court of Appeals
Brenda Alexander v. Donald Alexander
32A05-1108-DR-417
Domestic relations. Affirms in a divided opinion the trial court denial of a motion to correct error of the court’s omission of an award for incapacity maintenance for Brenda Alexander. She claimed that testimony of her disabilities and court findings supported an award, but the majority held that the trial court did not abuse its discretion on ruling that such an award was not warranted.
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Opinions Dec. 13, 2012

December 13, 2012
7th Circuit Court of Appeals
Estate of Rudy Escobedo (deceased) (Raquel Hanic, Personal Representative of Estate) v. Officer Brian Martin, et al.
11-2426
U.S. District Court, Northern District of Indiana, Fort Wayne Division, Judge Theresa L. Springmann.
Civil. Affirms jury verdict in favor of the defendants on the estate’s excessive force claim against the police and the city of Fort Wayne and grant of judgment as a matter of laws on qualified immunity grounds, as well as summary judgment in favor of officers Martin and Brown on the excessive force claim.
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Opinions Dec. 12, 2012

December 12, 2012
Indiana Court of Appeals
Ponziano Construction Services, Inc. v. Quadri Enterprises, LLC
45A05-1112-CC-661
Civil collection. Reverses award of $16,000 to Ponziano on its breach of contract claim against Quadri and the denial of Ponziano’s rquest to foreclose on its mechanic’s lien. Affirms the award of $8,000 in attorney fees to Ponziano and remands with instructions to the trial court to enter judgment in favor of Ponziano for $48,483.43, order sale of the property subject to the $45,549.43 lien, and determine the existence, extent, and outcome of a potential priority dispute between Ponziano and Wells Fargo.
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Opinions Dec. 11, 2012

December 11, 2012
Indiana Court of Appeals
Paul Henry Gingerich v. State of Indiana
43A05-1101-CR-27
Criminal. Reverses conviction of Class A felony conspiracy to commit murder and remands for further proceedings. The juvenile court abused its discretion when it denied Gingerich’s request for a continuance.
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  1. Indianapolis employers harassment among minorities AFRICAN Americans needs to be discussed the metro Indianapolis area is horrible when it comes to harassing African American employees especially in the local healthcare facilities. Racially profiling in the workplace is an major issue. Please make it better because I'm many civil rights leaders would come here and justify that Indiana is a state the WORKS only applies to Caucasian Americans especially in Hamilton county. Indiana targets African Americans in the workplace so when governor pence is trying to convince people to vote for him this would be awesome publicity for the Presidency Elections.

  2. Wishing Mary Willis only God's best, and superhuman strength, as she attempts to right a ship that too often strays far off course. May she never suffer this personal affect, as some do who attempt to change a broken system: https://www.youtube.com/watch?v=QojajMsd2nE

  3. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  4. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  5. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

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