Opinions

Opinions Oct. 3, 2014

October 3, 2014
Indiana Court of Appeals
Eve Carson v. Stacy Palombo
49A02-1312-PL-1052
Civil plenary. Affirms trial court grant of summary judgment in favor of Palombo on Carson’s claims of defamation per se, defamation per quod and invasion of privacy by false light based upon Palombo’s comments regarding a YouTube video Carson posted criticizing the investigation of her sister-in-law’s decades-old murder. The trial court did not abuse its discretion in denying Carson’s motion to amend her complaint to include facts she knew but omitted at the time her original complaint was filed to defeat a grant of summary judgment in Palombo’s favor. There is no genuine issue of material fact that Carson’s claimed damages were incurred as a consequence of alleged defamatory statements, and in the light of other videos Carson posted on YouTube, she was cast in essentially the same light as Palombo’s comment.
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Opinions Oct. 2, 2014

October 2, 2014
Indiana Court of Appeals
Robert Campbell v. State of Indiana
89A04-1312-CR-634
Criminal. Affirms on interlocutory appeal the order granting the state’s motion to withdraw from guilty plea. By refusing to testify at his co-defendant’s trial, Campbell failed to tender the consideration specifically contemplated in the plea agreement. Thus, it would deprive the state of its end of the bargain to sentence Campbell in accordance with a contract that he did not fully satisfy.
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Opinions Oct. 1, 2014

October 1, 2014
Indiana Supreme Court
Robert Corbin v. State of Indiana
75S03-1401-CR-13
Criminal. Affirms trial court denial of a motion to dismiss a charge of attempted child seduction and remands for further proceedings. Whether Corbin’s Facebook communications propositioning a 16-year-old student for sex constituted the required substantial step toward the crime is a question not ripe for dismissal on interlocutory appeal. Justices found the charges match the statutory elements sufficient to survive a motion to dismiss at this time.
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Opinions Sept. 30, 2014

September 30, 2014
Indiana Supreme Court
Gersh Zavodnik v. Irene Harper
49A04-1307-PL-316
Civil plenary. Denies transfer to Zavodink’s appeal of the dismissal of his appeal for failure to file a timely brief and appendix. Offers guidance to courts on how to deal with prolific, abusive litigants.
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Opinions Sept. 29, 2014

September 29, 2014
Indiana Court of Appeals
Bryan L. Good v. Wells Fargo Bank, NA.
20A03-1401-MF-14
Mortgage foreclosure. Reverses grant of partial summary judgment in favor of Wells Fargo and the subsequent judgment of foreclosure. The bank has not shown its status as holder of the promissory note signed by Good for purposes of the Uniform Commercial Code. Remands for further proceedings.
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Opinions Sept. 26, 2014

September 26, 2014
Indiana Court of Appeals
Shacare Terry v. Community Health Network, Inc.
49A04-1312-PL-630
Civil plenary.  Affirms dismissal of Terry’s claim of breach of duty against Community Hospital, but reverses dismissal of intentional infliction of emotional distress claim. The breach of duty claim is, in substance, a medical malpractice claim, so the court did not have jurisdiction because it had not been submitted to the medical review panel yet. The trial court had subject matter over Terry’s emotional distress claim.
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Opinions Sept. 25, 2014

September 25, 2014
The following Indiana Supreme Court opinion was posted after IL deadline Wednesday:
Scott Logan v. State of Indiana
20S05-1405-CR-339
Criminal. Reverses conviction of Class C felony child molesting and six-year sentence. Although the trial court technically complied with Criminal Rule 4(C), Logan’s 1,291-day delay between the filing of the charge and the beginning of his trial violated his constitutional right to a speedy trial. Orders Logan released from incarceration and remands for further proceedings.
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Opinions Sept. 24, 2014

September 24, 2014
Indiana Court of Appeals
Albert L. Hauck and Mark Wood v. City of Indianapolis
49A04-1403-PL-136
Civil plenary. Affirms summary judgment in favor of Indianapolis on Hauck’s and Wood’s complaint regarding the Indianapolis Metropolitan Police Department’s failure to promote them to captain. The word “endeavor” as used in the ordinance means to “attempt to,” and the plaintiffs failed to show the city did not maintain proportional representation of former Marion County Sheriff’s Department deputies and Indianapolis Police Department officers throughout the divisions and appointed ranks of IMPD as contemplated by the revised code.
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Opinions Sept. 23, 2014

September 23, 2014
Indiana Court of Appeals
The Branham Corporation v. Newland Resources, LLC; Samuel Sutphin; White River Funding Corp.; et al; Thomas N. Eckerle; Thomas N. Eckerle Prof. Corp. v. The Branham Corporation
06A05-1311-CT-572
Civil tort. Affirms the trial court’s summary judgment order in favor of the defendants. Reverses the order dismissing attorney Thomas Eckerle without prejudice and remands for entry of summary judgment in favor of Eckerle. Finds the trial court correctly determined the defendants were entitled to summary judgment because Branham filed its complaint for nonpayment of damages after the two-year statute of limitations had run.
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Opinions Sept. 22, 2014

September 22, 2014
Indiana Supreme Court
In the Matter of: Trezanay M. Atkins
49S00-1306-DI-435.
Attorney discipline. Suspends Atkins for two years without automatic reinstatement, finding she violated Indiana Rules of Professional Conduct 8.4(b), committing a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness; and 8.4(c), engaging in conduct involving dishonesty, fraud, deceit or misrepresentation.
 
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Opinions Sept. 19, 2014

September 19, 2014
Indiana Court of Appeals
City of Mitchell v. Randy Phelix
47A01-1402-PL-88
Civil plenary. Reverses denial of its complaint for a declaratory judgment related to former Mitchell city policeman Randy Phelix’s claim for medical expenses due to disabilities resulting from dismantling methamphetamine labs. The appeals court held that the trial court erred when it ruled that Phelix was entitled to have the city pay his medical bills under I.C. 36-8-4-5 despite the worker’s compensation carrier’s denial of his claim.
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Opinions Sept. 18, 2014

September 18, 2014
Indiana Supreme Court
State of Indiana v. Frank Greene
49S02-1403-PC-172
Post conviction. Reverses grant of post-conviction relief, which would have reduced Greene’s Class B felony criminal confinement conviction to a Class D felony. Greene did not receive ineffective assistance of trial or appellate counsel due to his attorneys’ failure to present allegedly controlling precedent from this court. Greene mischaracterizes the application of Long v. State.
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Opinions Sept. 17, 2014

September 17, 2014
Indiana Court of Appeals
Robert P. Benavides v. State of Indiana (NFP)
18A02-1405-PC-318
Post conviction. Affirms dismissal of petition for writ of state habeas corpus.
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Opinions Sept. 16, 2014

September 16, 2014
Indiana Court of Appeals
Willie Jenkins v. Mary Jenkins
49A02-1403-DR-132
Domestic relation. Reverses grant of Mary Jenkins’ motion to vacate a contempt hearing. It was not in the interests of justice for the trial court to ignore its rule of allowing 15 days to respond and granting her motion prior to allowing Willie Jenkins time for response. Remands for further proceedings.
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Opinions Sept. 15, 2014

September 15, 2014
Indiana Court of Appeals
Jeremiah Lee Collins v. State of Indiana (NFP)
21A01-1405-CR-192
Criminal.  Affirms revocation of probation.
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Opinions Sept. 12, 2014

September 12, 2014
Indiana Court of Appeals
In re the Marriage of Tina M. Harpenau v. Robin P. Harpenau
62A01-1401-DR-37
Domestic relation.  Affirms grant of father’s petition to modify, awarding him primary physical custody of the children and granting mother the same parenting time as father originally had, as well as that mother pay child support. The trial court did not abuse its discretion in modifying custody due to her proposed move or in modifying child support accordingly.
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Opinions Sept. 11, 2014

September 11, 2014
7th Circuit Court of Appeals
Securities and Exchange Commission v. First Choice Management Services Inc., et al; CRM Energy Partners and John W. Hannah v. Joseph D. Bradley, Receiver
14-1270, 14-2284
U.S. District Court, Northern District of Indiana, South Bend Division, Judge Robert L. Miller Jr.
Civil. Affirms denial of CRM’s motion to intervene in the sale of an oil and gas lease in order to compensate victims of fraud. Dismisses its appeal of the District Court’s approval of the sale. CRM waited too long to intervene in the action.
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Opinions Sept. 10, 2014

September 10, 2014
Indiana Supreme Court
Barbara J. Pohl v. Michael G. Pohl
32S04-1404-DR-245
Domestic relation. Reverses trial court and remands with instructions to apply the incapacity maintenance statute’s “substantial and continuing change in circumstances” standard to the evidence presented at the modification hearing. Any maintenance provision in a settlement agreement, regardless of its grounds, is modifiable only if the agreement so provides. The agreement in this matter contains such a provision.
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Opinions Sept. 9, 2014

September 9, 2014
Indiana Court of Appeals
Robert O. Hedrick v. Angela R. Gilbert
47A01-1401-DR-1
Domestic relation. Affirmed in part, reversed in part. Affirms denial of Hedrick’s motion to modify support for post-secondary educational expenses and affirms order of contempt and $500 fine issued to Hedrick for failing to abide by prior court rulings. Reverses the award to Gilbert of $1,000 in attorney fees as part of the contempt order, ruling that the trial court did not make findings that Hedrick’s petition to modify was frivolous, unreasonable or groundless.
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Opinions Sept. 8, 2014

September 8, 2014
Indiana Court of Appeals
Citizens Action Coalition of Indiana, Inc., Save the Valley, Inc., Sierra Club, and Valley Watch, Inc. v. Duke Energy Indiana, Inc., Indiana Office of Utility Consumer Counselor
93A02-1305-EX-394
Agency action. Remands to the Indiana Utility Regulatory Commission its order approving Duke’s request to include power plant construction costs of the Edwardsport coal-gasification plant from Oct. 1, 2011, to March 31, 2012, in a rate adjustment rider. Remands for findings as to whether a delay was chargeable to Duke and, if so, what impact the delay had on Duke’s customers’ rates. Also remands for a clear statement of the policy and evidentiary considerations underlying IURC’s determination that 50 percent of the plant was deemed in-service.
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Opinions Sept. 5, 2014

September 5, 2014
7th Circuit Court of Appeals
Marilyn Rae Baskin v. Penny Bogan
14-2386
Midori Fujii v. Commissioner of the Indiana State Department of Health
14-2387
Pamela Lee v. Brian Abbott
14-2388
U.S. District Court, Southern District of Indiana, Indianapolis Division, Chief Judge Richard Young
Civil. Affirms District Court judgment invalidating and enjoining Indiana and Wisconsin prohibitions on same-sex marriage. The 7th Circuit consolidated the three same-sex marriage cases from Indiana into one opinion with the single case from Wisconsin, Wolf et al. v. Walker, et al., 14:2526. The court confined its ruling to the 14th Amendment’s Equal Protection Clause and did not address the plaintiffs’ due process arguments. Rejects Indiana’s responsible procreation argument, finding Indiana’s prohibition on same-sex marriage discriminates against gays and lesbians.
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Opinions Sept. 4, 2014

September 4, 2014
Indiana Supreme Court
TP Orthodontics, Inc., Christopher Kesling, DDS, MS, Adam Kesling, and Emily Kesling, et al. v. Andrew Kesling, Individually and as Trustee of the Andrew C. Kesling Trust Dated March 28, 2001 et al.
46S03-1405-MI-337
Miscellaneous. Finds the trial court abused its discretion in ordering disclosure of the full special litigation committee report, as portions of it containing privileged information cannot be disclosed to the sibling shareholders. Remands to the trial court to conduct an in camera review of the full report to determine whether the designate material is in fact privileged.
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Opinions Sept. 3, 2014

September 3, 2014
Indiana Supreme Court
Natural Resources Defense Council v. Poet Biorefining- North Manchester, LLC, Poet Biorefining- Cloverdale, LLC, Central Indiana Ethanol, Inc., et al.
49S02-1405-MI-313
Miscellaneous. IDEM was not required to formally amend Indiana’s state implementation plan with the EPA to effectuate its change in how it interprets the regulatory phrase “chemical process plant.” IDEM’s interpretation to exclude fuel ethanol plants under the definition of “chemical process plant” is legally permissible.
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Opinions Sept. 2, 2014

September 2, 2014
7th Circuit Court of Appeals
James M. Sweeney, et al. v. Gov. Michael Pence, et al.
13-1264
U.S. District Court, Northern District of Indiana, Hammond Division, Chief Judge Philip P. Simon.
Civil. Affirms dismissal of union’s lawsuit arguing the Right to Work Act violates union members’ rights under the U.S. Constitution and is preempted by federal labor legislation. The legislation is not preempted by the scheme of federal labor law and does not violate any constitutional rights. Judge Tinder for the majority writes that the controversy of the law needs to be addressed legislatively, not through the courts. Chief Judge Wood dissents.
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Opinions Aug. 29, 2014

August 29, 2014
Indiana Court of Appeals
C.H. v. State of Indiana
49A02-1310-JV-904
Juvenile. Affirms officer’s stop of C.H. because he was believed to be a suspect in a crime and the order of restitution because C.H. never objected to the order he pay restitution. Reverses adjudication of what would be Class B misdemeanor unlawful entry of a motor vehicle because the same evidence was used to adjudicate C.H. of that charge and what would be Class A misdemeanor trespass. Remands for further proceedings.
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  1. All the lawyers involved in this don't add up to a hill of beans; mostly yes-men punching their tickets for future advancement. REMF types. Window dressing. Who in this mess was a real hero? the whistleblower that let the public know about the torture, whom the US sent to Jail. John Kyriakou. http://www.nytimes.com/2013/01/26/us/ex-officer-for-cia-is-sentenced-in-leak-case.html?_r=0 Now, considering that Torture is Illegal, considering that during Vietnam a soldier was court-martialed and imprisoned for waterboarding, why has the whistleblower gone to jail but none of the torturers have been held to account? It's amazing that Uncle Sam's sunk lower than Vietnam. But that's where we're at. An even more unjust and pointless war conducted in an even more bogus manner. this from npr: "On Jan. 21, 1968, The Washington Post ran a front-page photo of a U.S. soldier supervising the waterboarding of a captured North Vietnamese soldier. The caption said the technique induced "a flooding sense of suffocation and drowning, meant to make him talk." The picture led to an Army investigation and, two months later, the court martial of the soldier." Today, the US itself has become lawless.

  2. "Brain Damage" alright.... The lunatic is on the grass/ The lunatic is on the grass/ Remembering games and daisy chains and laughs/ Got to keep the loonies on the path.... The lunatic is in the hall/ The lunatics are in my hall/ The paper holds their folded faces to the floor/ And every day the paper boy brings more/ And if the dam breaks open many years too soon/ And if there is no room upon the hill/ And if your head explodes with dark forbodings too/ I'll see you on the dark side of the moon!!!

  3. It is amazing how selectively courts can read cases and how two very similar factpatterns can result in quite different renderings. I cited this very same argument in Brown v. Bowman, lost. I guess it is panel, panel, panel when one is on appeal. Sad thing is, I had Sykes. Same argument, she went the opposite. Her Rooker-Feldman jurisprudence is now decidedly unintelligible.

  4. November, 2014, I was charged with OWI/Endangering a person. I was not given a Breathalyzer test and the arresting officer did not believe that alcohol was in any way involved. I was self-overmedicated with prescription medications. I was taken to local hospital for blood draw to be sent to State Tox Lab. My attorney gave me a cookie-cutter plea which amounts to an ALCOHOL-related charge. Totally unacceptable!! HOW can I get my TOX report from the state lab???

  5. My mother got temporary guardianship of my children in 2012. my husband and I got divorced 2015 the judge ordered me to have full custody of all my children. Does this mean the temporary guardianship is over? I'm confused because my divorce papers say I have custody and he gets visits and i get to claim the kids every year on my taxes. So just wondered since I have in black and white that I have custody if I can go get my kids from my moms and not go to jail?

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