Opinions

Opinions Dec. 23, 2015

December 23, 2015
Indiana Court of Appeals
Raymond Kerr v. City of South Bend
71A03-1502-CT-49
Civil tort. Affirms in part and reverses in part summary judgment for the city on Kerr’s complaint alleging that noxious gases from its sewer lines had been forced into his home. Finds Kerr’s claims are barred by the statute of limitations insofar as they relate to injury to his health. A portion of his claims may proceed insofar as they relate to damage to his property. Remands for further proceedings.
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Opinions Dec. 22, 2015

December 22, 2015
Indiana Supreme Court
Randy L. Thornton v. State of Indiana, Ind. Dept. of Corr., Marion Co., Indiana, City of Indianapolis, Matthew Pietrzak, Stephanie Buttz, Eric Lee, and Dianna Johnson
49S02-1512-PL-709
Civil plenary. Grants transfer and reverses the dismissal of Thorton’s Section 1983 claim against the defendants. Remands for further proceedings. The trial court erred when it determined Thorton’s complaint did not state a claim for relief under 42 U.S.C. 1983 against the individually named probation officers. Justices Dickson and Massa dissent without opinion.
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Opinions Dec. 21, 2015

December 21, 2015
7th Circuit Court of Appeals
Frederick T. Garner v. United States of America
13-3506, 15-3661
U.S. District Court, Southern District of Indiana, Indianapolis Division. Judge Larry J. McKinney.
Civil/Criminal. Vacates new criminal sentence and remands to the district court for resentencing. Because of the misunderstanding that arose after Garner tried to appeal from the district court’s comments indicating the court saw no merit in his ineffective-counsel argument, Garner did not receive the full resentencing to which he was entitled.
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Opinions Dec. 18, 2015

December 18, 2015
7th Circuit Court of Appeals
Kevin B. McCarthy, et al. and Langsenkamp Family Apostolate, et al. v. Patricia Ann Fuller, et al.
14-3308, 15-1839
U.S. District Court, Southern District of Indiana, Indianapolis Division. Judge William T. Lawrence.
Civil. Affirms judgment in favor of plaintiffs on their claims against Fuller and Paul Hartman, including defamation. Reverses injunction put in place against Fuller and Hartman enjoining them from keeping up a blog or making certain statements regarding the plaintiffs. The injunction in this case is so broad it threatens to silence Fuller and Hartman completely. Remands for the district court to decide whether to issue a new injunction, one consistent with the criticisms outlined by the appellate court. Judge Sykes concurs with separate opinion.
 
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Opinions Dec. 17, 2015

December 17, 2015
Indiana Supreme Court
The following opinion was issued after IL deadline Wednesday.
AM General LLC v. James A. Armour
71S03-1507-PL-407
Civil plenary. Affirms trial court order in favor or Armour, awarding him the remaining portion of his long-term incentive plan payments. Holds that the promissory note AM General provided to Armour as compensation under the plan after he retired did not satisfy the requirement of “payment” under the disputed employment contract. As a matter of law, payment under the contract requires the benefit to be paid in cash or a cash equivalent.
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Opinions Dec. 16, 2015

December 16, 2015
Indiana Supreme Court
The following Indiana Supreme Court opinion was posted after IL deadline Tuesday:
Jeffrey Hewitt v. Westfield Washington School Corporation, et al.
29S04-1506-PL-377
Civil plenary. Affirms summary judgment for the school corporation on Hewitt’s lawsuit after he was terminated as principal of an elementary school for being involved in a sexual relationship with a teacher, one of his subordinates. In a case of first impression, holds that the teacher’s termination statute, I.C. 20-28-7.5-1 et seq., does not apply to termination of an administrator when his underlying teaching contract is not being terminated. Holds that the provisions in the form teacher’s contract that make reference to an opportunity for hearing and a just cause determination also apply only to the termination of an administrator’s underlying teaching contract.
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Opinions Dec. 15, 2015

December 15, 2015
Opinions Dec. 15, 2015
7th Circuit Court of Appeals

The following opinion was posted yesterday after IL deadline:
Indiana Petroleum Marketers and Convenience Store Association, et al. v. David Cook, in his official capacity as Chairman of the Indiana Alcohol and Tobacco Commmission
14-2559
Civil. Affirms summary judgment for Indiana. Finds convenience stores, grocery stores and gas stations did not meet their burden to show that the state law limiting the sale of cold beer violates the Equal Protection Clause.
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Opinions Dec. 14, 2015

December 14, 2015
Indiana Court of Appeals
F. John Rogers, as Personal Representative of Paul Michalik, Deceased, and R. David Boyer, Trustee of the Bankruptcy Estate of Jerry Lee Chambers v. Angela Martin and Brian Paul Brothers
02A05-1506-CT-520
Civil tort. Reverses trial court orders granting Angela Martin’s motion to strike and motion for summary judgment. The question of whether Martin is liable under the Dram Shop Act for furnishing alcohol to an intoxicated person, who later died after attending a party at the house she shared with Brian Paul Brothers, is a factual issue to be resolved at trial. Finds Martin as the host of a party had a duty to exercise reasonable care and render aid after she saw Paul Michalik unconscious after drinking and being involved in a fight, and questions of fact remain as to whether she breached that duty.
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Opinions Dec. 11, 2015

December 11, 2015
Indiana Court of Appeals
Wayne Patton v. Jessica Patton

17A04-1503-DR-137
Domestic relation. Affirms denial of father’s motion for modification of visitation, finding the trial court struck a balance that addresses the concerns of all, while still providing father with opportunities for more rewarding parenting time with W.P. immediately and in the future. Reverses portion denying his modification of child support, finding the emancipation of daughter Ja. P. was a substantial and continuing change to justify modification. Remands for modification of support obligation to become $136.42 per week.
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Opinions Dec. 10, 2015

December 10, 2015
Indiana Court of Appeals
Ronald L. Eckelbarger v. State of Indiana
90A02-1503-CR-188
Criminal. Affirms convictions of three counts of Class B felony dealing in methamphetamine and one count of Class D felony possession of chemical reagents or precursors with intent to manufacture a controlled substance. Eckelbarger’s convictions do not violate double jeopardy, the trial court did not abuse its discretion by ordering consecutive sentences, and his 32-year sentence is not inappropriate. Judge Riley dissents in part.
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Opinions Dec. 9, 2015

December 9, 2015
Indiana Court of Appeals
Chuck W. Adams, Charles E. Howard, et al. v. ArvinMeritor, Inc., et al.
49A02-1406-PL-465
Civil plenary. Reverses the grant of ArvinMeritor and state defendants’ Trial Rule 12(B)(6) motions to dismiss the plaintiffs’ claim for unpaid wages because Adams, a Department of Correction inmate, has a private right of action to pursue his wage claim. Affirms summary judgment to the defendants on his personal injury claim because Adams had an available administrative remedy but failed to pursue it to completion. Concludes Adams was allowed to participate in a hearing on a number of motions through the submission of documentary evidence. Judge May dissents.
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Opinions Dec. 8, 2015

December 8, 2015
Indiana Supreme Court
Stacy Knighten v. East Chicago Housing Authority, Individually and d/b/a West Calumet Complex, Davis Security Service, LLC, and Donnell Caldwell

45S04-1512-CT-686
Civil tort. Reverses summary judgment in favor of Davis Security on Knighten’s complaint under the theory of respondeat superior. There is conflicting evidence as to the scope and extent of Caldwell’s duties and responsibilities as an employee of Davis Security.
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Opinions Dec. 7, 2015

December 7, 2015
Indiana Court of Appeals
Phillip Whitley v. State of Indiana
49A02-1501-CR-50
Criminal. Affirms on interlocutory appeal the denial of Whitley’s motion to suppress evidence found during an inventory search of the vehicle Whitley was driving. Even though officers did not follow police procedure for inventorying a vehicle, there is nothing to indicate the search was a pretext for a narcotics investigation.
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Opinions Dec. 4, 2015

December 4, 2015
The following Indiana Tax Court opinion was posted after IL deadline Thursday.
Marion County Assessor v. Gateway Arthur, Inc.

49T10-1212-TA-82
Tax. Affirms the decision by the Indiana Board of Tax Review to reduce Gateway Arthur Inc.’s real property assessment for the 2006 tax year. The board did not err in determining that the assessor rather than Gateway Arthur bore the burden of proof regarding the assessment, in determining that the assessor’s evidence lacked probative value, or in valuing the subject property at $10.5 million for the 2006 tax year.
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Opinions Dec. 3, 2015

December 3, 2015
Indiana Court of Appeals
Roger S. Blackman v. Karen A. Gholson and James W. Blackman
52A02-1412-ES-883
Estate, supervised. Affirms dismissal of Roger Blackman’s will contest action and subsequent denial of his motion to correct error. Finds the trial court erred in dismissing the suit based on lack of subject matter jurisdiction, as it did have jurisdiction over Blackman’s attempted will contest action. But it was appropriate to dismiss the action due to his failure to comply with the statutes and rules for initiating such an action. His failure to pay the filing fee for the action precludes reliance upon the Journey’s Account Statute to allow him to re-file. Denies Karen Gholson and James Blackman’s request for appellate attorney fees.
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Opinions Dec. 2, 2015

December 2, 2015
Indiana Supreme Court
Christopher Schmidt v. Indiana Insurance Company, C&F Insurance Group, LLC, and Bart Stith
22S01-1507-PL-412
Civil plenary. Reverses in part the trial court's entry of summary judgment for the insurance agency and insurance agent to the extent that it may apply to the Schmidt’s claim for negligent procurement of insurance, but directs the entry of partial summary judgment for the agents as to Schmidt’s claim alleging the agents failed to accurately report dwelling fire policy information to the insurance company. The agents failed to exclude the possibility that other types of fire insurance coverage for Schmidt’s rental property could have been obtained and issued. Affirms summary judgment for Indiana Insurance Co.
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Opinions Dec. 1, 2015

December 1, 2015
Indiana Supreme Court
In the Matter of: David J. Steele
49S00-1509-DI-527    
Attorney discipline. Disbars David J. Steele, who had been under emergency interim suspension since Sept. 4, for eight counts detailed in a verified complaint. Steele is accused of stealing about $150,000 from clients, disclosing client confidences for purposes of both retaliation and amusement, threatening and intimidating his office staff and lying pervasively to all comers. Disbarment is warranted based on the seriousness and brazenness of the conduct.
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Opinions Nov. 30, 2015

November 30, 2015
Indiana Court of Appeals
In the Matter of S.M., J.M., A.M., H.G., Children in Need of Services, A.M. (Mother) v. The Indiana Department of Child Services
49A02-1505-JC-377
Juvenile. Reverses CHINS adjudication of S.M., J.M., A.M. and H.G. Finds no evidence that the children were ever in danger or ever lacked food, shelter or love and care. Although mother has a history of sporadic marijuana use, she has passed every drug test given by DCS and her substance abuse assessment did not recommend her for substance abuse treatment. 
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Opinions Nov. 25, 2015

November 25, 2015
Indiana Court of Appeals
Bryant Lamonte White v. State of Indiana (mem. dec.)
53A01-1501-CR-42
Criminal. Affirms 40-year sentence and conviction of Class A felony conspiracy to commit dealing in a Schedule I controlled substance.
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Opinions Nov. 24, 2015

November 24, 2015
Indiana Court of Appeals
Amit Shah and Tim Dugle v. Apex Pallet, Inc., Duro, Inc. d/b/a Recycled New Pallets, Duro Realty, Inc., Duro Transport, Inc., and Terry Rodino (mem. dec.)
44A05-1503-PL-115
Civil plenary. Reverses the grant of a motion to dismiss with prejudice made by defendants-appellees Apex Pallet Inc., Duro Inc., Duro Realty Inc., Duro Transport Inc. and Terry Rodino. Finds Dugle and Shah’s amended complaint filing was timely as it complied with the 30-day deadline set forth by the court.
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Opinions Nov. 23, 2015

November 23, 2015
Indiana Court of Appeals
Ralph Jackson v. State of Indiana
34A02-1505-CR-453
Criminal. Reverses 20-year sentence following guilty plea to Class B felony dealing in a Schedule II controlled substance. The trial court does not have the option of selecting a sentence based solely on the defendant’s conduct apart from the circumstances of the crime. Because the trial court did not issue an adequate sentencing statement, it abused its sentencing discretion.
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Opinions Nov. 20, 2015

November 20, 2015
Indiana Court of Appeals
Tyrone Causey v. State of Indiana
49A02-1503-CR-185
Criminal. Reverses Causey’s conviction of Class D felony intimidation. The state failed to present sufficient evidence from which a jury could find beyond a reasonable doubt that Causey communicated a threat to the officers that was intended to place them in fear of retaliation for responding to a call at his residence. 
 
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Opinions Nov. 19, 2015

November 19, 2015
Indiana Court of Appeals
Mary K. Patchett v. Ashley N. Lee
29A04-1501-CT-1
Civil tort. Affirms on interlocutory appeal the grant of a motion in limine filed by Lee and order that evidence of payments made by the Healthy Indiana Plan to reimburse Lee’s medical providers in full satisfaction of her bills was barred by the collateral source statute and is not admissible under Indiana case law. Determines that the rule of Stanley applies only to lower paid amounts when those amounts are the result of negotiated discounts and therefore are probative of a medical service’s reasonable value.
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Opinions Nov. 18, 2015

November 18, 2015
Indiana Court of Appeals
Ada Brown v. Indiana Family and Social Services Administration
87A01-1501-PL-38
Civil plenary. Reverses imposition of a transfer penalty by FSSA against Brown, after finding she is eligible for Medicaid benefits, based on the sale of Brown’s home in 2010. Evidence shows the proceeds from the sale of the home were placed back in her irrevocable trust and the fair market value of her home was $75,000, not $91,900 as FSSA had valued it.
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Opinions Nov. 17, 2015

November 17, 2015
Indiana Court of Appeals
Luis Fuerte v. State of Indiana (mem. dec.)
45A03-1501-CR-15
Criminal. Affirms aggregate 19-year executed sentence and convictions of Class B felony attempted incest, Class C felony child molesting and Class D felony sexual battery.
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  1. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  2. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  3. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

  4. Here's an idea...how about we MORE heavily regulate the law schools to reduce the surplus of graduates, driving starting salaries up for those new grads, so that we can all pay our insane amount of student loans off in a reasonable amount of time and then be able to afford to do pro bono & low-fee work? I've got friends in other industries, radiology for example, and their schools accept a very limited number of students so there will never be a glut of new grads and everyone's pay stays high. For example, my radiologist friend's school accepted just six new students per year.

  5. I totally agree with John Smith.

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