Opinions Oct. 12, 2011

October 12, 2011
Indiana Court of Appeals
Julie Nunley, n/k/a Waldrath v. Jeremy A. Nunley
Domestic relation. Affirms that Jeremy Nunley is entitled to a reduction of his child support obligation due to the decrease in his income due to his incarceration for Class D felony nonsupport of a dependent. Declines to create an exception to the rules set forth in Clark and Lambert for individuals incarcerated for the crime of nonsupport of a dependent.

Opinions Oct. 11, 2011

October 11, 2011
7th Circuit Court of Appeals
United States of America v. Roger Loughry, also known as Mayorroger
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge William T. Lawrence
Criminal. Reverses District Court’s decision to allow admission as evidence “hard core” pornography without examining it or without explaining its reasoning under Rule 403. Holds that the material was highly inflammatory and held only minimal probative value, but created extreme prejudice against Loughry. Remands to the District Court for proceedings consistent with opinion.

Opinions Oct. 10, 2011

October 10, 2011
The state and federal appellate courts are closed Monday in observance of Columbus Day.

Opinions Oct. 7, 2011

October 7, 2011
Indiana Court of Appeals
James Fernbach v. State of Indiana
Criminal. Affirms 60-year sentence for two counts of Class A felony attempted murder, holding that the jury’s rejection of Fernbach’s insanity defense was not erroneous.

Opinions Oct. 6, 2011

October 6, 2011
Indiana Supreme Court
Putnam County Sheriff v. Pamela Price
Civil. Reverses trial court’s denial of the Putnam County Sheriff’s motion to dismiss Price’s negligence action for failure to state a claim. A county sheriff’s department that neither owns, maintains or controls a county road does not owe a common law duty to warn the public of known hazardous conditions upon the roadway. Justices David and Dickson concur in result.

Opinions Oct. 5, 2011

October 5, 2011
Indiana Court of Appeals
P.J. v. State of Indiana

Juvenile. Affirms restitution order following adjudication, after a guilty plea, as a delinquent child for committing what would be Class B felony burglary if committed by an adult. P.J. waived his right to have the juvenile court inquire into his ability to pay, as he has acknowledged such ability in his plea agreement.

Opinions Oct. 4, 2011

October 4, 2011

Indiana Court of Appeals
Saba Tesfamariam v. Moghes Woldehaimanot
Domestic relation. Affirms decree of dissolution of marriage, which awarded father Moghes Woldehaimanot full custody of the minor children. The trial court abused its discretion by failing to establish that mother Saba Tesfamariam’s interpreter was qualified and by failing to administer an oath to the interpreter to provide an accurate translation. The failure to establish the qualifications or to administer an oath is not a fundamental error, and the trial court’s errors in the instant case were not fundamental.


Opinions Oct. 3, 2011

October 3, 2011
7th Circuit Court of Appeals
Kristine P. Purcell v. Bank of America
U.S. District Court, Northern District of Indiana, Fort Wayne Division, Judge James T. Moody.
Civil. Reverses dismissal of Purcell’s common-law claims against the bank without prejudice to allow her to refile in state court. Remands with instructions to enter judgment for the bank on all of Purcell’s state and federal claims. Section 1681t(b)(1)(F) and Section 16811h(e)of 15 U.S.C. are compatible, and Section 1681(t)(b) would preempt Purcell’s state-law theories.

Opinions Sept. 30, 2011

September 30, 2011
Indiana Supreme Court
Franklin Electric Company, Inc. v. Unemployment Insurance Appeals of the Indiana Dept. of Workforce Development
Agency appeal. Affirms determination of the liability administrative law judge that Franklin Electric Co. and its two newly created entities Franklin Electric Manufacturing and Franklin Electric Sales are a single employer. The manufacturing and sales entities did not acquire a distinct and segregable portion of Franklin Electric’s business, so they did not qualify as “employers” under the laws governing Indiana’s unemployment compensation arrangements.

Opinions Sept. 29, 2011

September 29, 2011

7th Circuit Court of Appeals
Cedar Farm, Harrison County Inc. v. Louisville Gas and Electric Co.
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge David F. Hamilton.
Civil. Affirms summary judgment for Louisville Gas and Electric on Cedar Farm’s attempt to eject Louisville Gas and Electric from its property and to terminate an oil and gas lease for violations of certain portions of the lease. The lease allows for a damages remedy and Cedar Farm hasn’t show that damages are inadequate to compensate for the harm to its property.


Opinions Sept. 28, 2011

September 28, 2011
Indiana Supreme Court
Desmond Turner v. State of Indiana
Criminal. Affirms convictions of murder, criminal confinement, robbery and burglary, and the sentence of life in prison without parole for the murder convictions, plus a term of years for the other convictions. The trial court did not abuse its discretion in permitting firearms and tool mark examiner Michael Putzek’s testimony, and the admission of challenged testimony did not violate Indiana Evidence Rule 404(b). The trial court erred in admitting testimony on a statement made by Turner’s mother, but that does not require reversal.

Opinions Sept. 27, 2011

September 27, 2011
Indiana Court of Appeals
Term. of Parent-Child Rel. of A.B.; E.B. v. IDCS (NFP)
Juvenile. Affirms termination of father’s parental rights.

Opinions Sept. 26, 2011

September 26, 2011
Indiana Court of Appeals
Angela K. Farno v. Ansure Mortuaries of Indiana, LLC, et al.
Civil plenary. Affirms denial of Farno’s motion for class certification on superiority grounds regarding the alleged looting of cemetery trusts that had been funded from proceeds of purchases of pre-need burial services. The trial court did not err in finding the receiver’s action provided a superior method to recovery any of the missing trust funds.

Opinions Sept. 23, 2011

September 23, 2011
Indiana Court of Appeals
Corrine R. Finnerty, as Successor Personal Representaive of the Estate of Dora Grace Lee, deceased v. Joseph A. Colussi and the Colussi Law Office
Estate, supervised. Reverses grant of summary judgment in favor of Joseph Colussi and Colussi Law Office on legal malpractice claim, holding that genuine issues of material fact exist and preclude such judgment. Remands for proceedings consistent with opinion. 

Opinions Sept. 22, 2011

September 22, 2011
Indiana Court of Appeals
An-Hung Yao and Yu-Ting Lin v. State of Indiana
Criminal. Affirms order dismissing the Class D felony counterfeiting charges against Yao and Lin and reverses the denial of their motion to dismiss counts of Class D felony theft and Class C felony corrupt business influence. The trial court lacked territorial jurisdiction because there is no evidence any conduct that is an element of the alleged offenses occurred in Indiana. Remands for the trial court to dismiss the remaining charges.

Opinions Sept. 21, 2011

September 21, 2011
Indiana Court of Appeals
George W. Giltner, Jr. v. Betty L. Ivers, Martin Zacharias, Jr., and Bradi L. Zacharias
Civil plenary. Affirms trial court’s confirmation of a report that partitioned 16.5 acres of a 100-acre parcel to Giltner, who owned an undivided 20 percent interest in the parcel. Giltner has not shown that he was prejudiced by the division outlined in the report.

Opinions Sept. 20, 2011

September 20, 2011
Indiana Supreme Court
Rod L. Avery and Marshall K. Avery v. Trina R. Avery
Civil plenary. Affirms default judgment entered against Rod and Marshall Avery. The Indiana Trial Rules apply to will contest actions, and the failure to file an answer or responsive pleading in accordance with Trial Rule 7 may result in a default judgment.

Opinions Sept. 19, 2011

September 19, 2011
Indiana Court of Appeals
John Haegert v. Margaret McMullan
Civil tort. Affirms summary judgment for Margaret McMullan in John Haegert’s action alleging defamation, tortious breach of his employment contract, and intentional infliction of emotional distress. Haegert failed to show how he was injured by the contents of McMullan’s file as his termination was based only upon an incident involving McMullan. There is not properly designated evidence in the record that McMullan intended to cause Haegert emotional distress.

Opinions Sept. 16, 2011

September 16, 2011
Indiana Court of Appeals
Jon Paul Tongate v. State of Indian
Criminal. Affirms conviction of Class D felony receiving stolen property. The magistrate that presided over Tongate’s jury trial was not required to rule on the motion to correct error, and Tongate’s conviction is supported by sufficient evidence.

Opinions Sept. 15, 2011

September 15, 2011
7th Circuit Court of Appeals
Cheryl A. Burns v. Orthoteck Inc. Employees’ Pension Plan and Trust, et al.
U.S. District Court, Northern District of Indiana, South Bend Division, Chief Judge Philip P. Simon.
Civil. Affirms finding that Cheryl Burns’ consent to designate her husband’s three sons as beneficiaries was valid and affirms the denial of her claim for benefits. The unusual circumstances of the case lead to the conclusion that the pension plan was within its discretion to find that Dr. Burns, as plan representative, verified the authenticity of his wife’s signature on the written consent form and this satisfied 29 U.S.C. 1055’s witness requirement. The plan was also within its discretion to deny Burns’ claim for benefits.

Opinions Sept. 14, 2011

September 14, 2011
Indiana Court of Appeals
Kenneth Dwayne Vaughn v. State of Indiana
Criminal. Reverses trial court’s denial of motion for mistrial, holding that restraining the defendant in the presence of the jury could have influenced the jury’s verdict.

Opinions Sept. 13, 2011

September 13, 2011
Indiana Court of Appeals
Yasin Hory v. State of Indiana
Infraction. Affirms conviction of Class C infraction illegal parking, holding that Hory failed to establish an express or implied pre-emption of local traffic safety laws by federal motor safety regulations.

Opinions Sept. 12, 2011

September 12, 2011
7th Circuit Court of Appeals
Kevin B. Arnett v. Thomas A. Webster, M.D., et al.
U.S. District Court, Southern District of Indiana, Terre Haute Division, Judge William T. Lawrence.
Civil. Affirms dismissal of the non-medical defendants from Arnett’s Bivens action for cruel and unusual punishment while he was in prison. Finds Arnett properly stated a claim against the medical defendants Beighley, Dr. Wilson, and Paul-Blanc and reverses dismissal with regards to those three. Affirms summary judgment in favor of Dr. Webster because Arnett failed to meet his burden to submit evidence upon which a reasonable jury could find that the doctor acted with deliberate indifference. Remands for further proceedings.

Opinions Sept. 9, 2011

September 9, 2011
7th Circuit Court of Appeals
Autumn Eaton v. Indiana Department of Corrections, Pendleton Juvenile Corrections Facility

U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge Jane Magnus-Stinson.
Civil. Reverses judgment of the District Court, finding that sufficient evidence exists to preclude summary judgment in favor of Eaton’s employer, the Indiana Department of Corrections, in her Title VII discrimination claim. Remands to the court for proceedings consistent with the opinion.

Opinions Sept. 8, 2011

September 8, 2011
Indiana Court of Appeals
Cathy Minix, et al. v. Sheriff Frank Canarecci, Jr., et al.
Civil tort. Reverses summary judgment in favor of Canarecci on Minix’s wrongful death claim and affirms denial of the medical providers’ motion for summary judgment in Minix’s wrongful death claim and medical malpractice claim. Minix’s Child Wrongful Death Statute claim against the sheriff isn’t barred by the doctrine of res judicata, and an award of damages on both the federal and state claims at issue won’t result in double recovery.
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  1. I have an open CHINS case I failed a urine screen I have since got clean completed IOP classes now in after care passed home inspection my x sister in law has my children I still don't even have unsupervised when I have been clean for over 4 months my x sister wants to keep the lids for good n has my case working with her I just discovered n have proof that at one of my hearing dcs case worker stated in court to the judge that a screen was dirty which caused me not to have unsupervised this was at the beginning two weeks after my initial screen I thought the weed could have still been in my system was upset because they were suppose to check levels n see if it was going down since this was only a few weeks after initial instead they said dirty I recently requested all of my screens from redwood because I take prescriptions that will show up n I was having my doctor look at levels to verify that matched what I was prescripted because dcs case worker accused me of abuseing when I got my screens I found out that screen I took that dcs case worker stated in court to judge that caused me to not get granted unsupervised was actually negative what can I do about this this is a serious issue saying a parent failed a screen in court to judge when they didn't please advise

  2. I have a degree at law, recent MS in regulatory studies. Licensed in KS, admitted b4 S& 7th circuit, but not to Indiana bar due to political correctness. Blacklisted, nearly unemployable due to hostile state action. Big Idea: Headwinds can overcome, esp for those not within the contours of the bell curve, the Lego Movie happiness set forth above. That said, even without the blacklisting for holding ideas unacceptable to the Glorious State, I think the idea presented above that a law degree open many vistas other than being a galley slave to elitist lawyers is pretty much laughable. (Did the law professors of Indiana pay for this to be published?)

  3. Paul Hartman of Burbank, Oh who is helping Sister Fuller with this Con Artist Kevin Bart McCarthy scares Sister Joseph Therese, Patricia Ann Fuller very much that McCarthy will try and hurt Patricia Ann Fuller and Paul Hartman of Burbank, Oh or any member of his family. Sister is very, very scared, (YES, I AM) This McCarthy guy is a real, real CON MAN and crook. I try to totall flatter Kevin Bart McCARTHY to keep him from hurting my best friends in this world which are Carolyn Rose and Paul Hartman. I Live in total fear of this man Kevin Bart McCarthy and try to praise him as a good man to keep us ALL from his bad deeds. This man could easy have some one cause us a very bad disability. You have to PRAISAE in order TO PROTECT yourself. He lies and makes up stories about people and then tries to steal if THEY OWN THRU THE COURTS A SPECIAL DEVOTION TO PROTECT, EX> Our Lady of America DEVOTION. EVERYONE who reads this, PLEASE BE CAREFUL of Kevin Bart McCarthy of Indianapolis, IN My Phone No. IS 419-435-3838.

  4. Joe, you might want to do some reading on the fate of Hoosier whistleblowers before you get your expectations raised up.

  5. I had a hospital and dcs caseworker falsify reports that my child was born with drugs in her system. I filed a complaint with the Indiana department of health....and they found that the hospital falsified drug screens in their investigation. Then I filed a complaint with human health services in Washington DC...dcs drug Testing is unregulated and is indicating false positives...they are currently being investigated by human health services. Then I located an attorney and signed contracts one month ago to sue dcs and Anderson community hospital. Once the suit is filed I am taking out a loan against the suit and paying a law firm to file a writ of mandamus challenging the courts jurisdiction to invoke chins case against me. I also forwarded evidence to a u.s. senator who contacted hhs to push an investigation faster. Once the lawsuit is filed local news stations will be running coverage on the situation. Easy day....people will be losing their jobs soon...and judge pancol...who has attempted to cover up what has happened will also be in trouble. The drug testing is a kids for cash and federal funding situation.