Opinions

Opinions March 14, 2011

March 14, 2011

7th Circuit Court of Appeals
In Re: Gerald W. Davis Jr.; Linda Reeves v. Gerald W. Davis Jr.
10-2757
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge Jane Magnus-Stinson.
Civil. Affirms District Court’s affirmation of the bankruptcy court ruling that Davis’ debt owed to Reeves was dischargeable. There was no finding of fraudulent intent on Davis’ part, as is required for the application of 11 U.S.C. Section 523(a)(2) to prevent Davis’ debt to Reeves from being dischargeable. The decision in United States v. Childs forecloses a challenge to the reasonableness of the traffic stop.

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Opinions March 11, 2011

March 11, 2011
Indiana Court of Appeals
Molly C. Wilson v. Charles W. Wilson (NFP)
62A04-1004-DR-269
Domestic relation. Affirms order dissolving marriage and distributing marital property.
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Opinions March 10, 2011

March 10, 2011

Indiana Court of Appeals
Paternity of X.K.T.; J.L.H. v. B.L.T. (NFP)
67A01-1005-JP-212
Juvenile. Dismisses father’s appeal of the trial court order against him finding him in contempt for failure to pay child support.
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Opinions March 9, 2011

March 9, 2011
7th Circuit Court of Appeals
Peggy Abner and Linda Kendall v. Scott Memorial Hospital
10-2713
U.S. District Court, Southern District of Indiana, New Albany Division, Chief Judge Richard L. Young.
Civil. Denies motion to file an oversized brief and affirms summary judgment for Scott Memorial Hospital in a suit under the False Claims Act. Finds the appeal has no merit and the appellant’s attorney flagrantly violated the word limit for the brief.
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Opinions March 8, 2011

March 8, 2011
Indiana Court of Appeals
Lisa Gray v. State of Indiana
82A01-1005-CR-223
Criminal. Reverses Gray’s conviction of possession of marijuana as a Class A misdemeanor. She contended there was insufficient evidence that she constructively possessed the marijuana. Judge Cale Bradford dissents, writing that Gray was in close proximity to the marijuana and that it was in plain view, as officers had testified at trial.
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Opinions March 7, 2011

March 7, 2011
7th Circuit Court of Appeals
United States of America v. Martin Avila
09-2681
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge David F. Hamilton.
Criminal. Affirms 365-month sentence for drug offenses following re-sentencing on remand. The District Court corrected the drug quantity attributable to Avila. The District Court did not violate the cross-appeal rule and acted within the scope of the remand.
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Opinions March 4, 2011

March 4, 2011
7th Circuit Court of Appeals
In Re: Rich Bergeron
10-3279
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge Sarah Evans Barker.
Civil. Denies Bergeron’s petition for mandamus removing Judge Barker from Eppley v. Iacovelli, pending in the District Court. Bergeron is involved in that suit and was held in contempt for not removing web postings. Regarding Bergeron’s contempt proceeding, Bergeron didn’t ask the 7th Circuit to stay the proceeding in the District Court and it’s now too late to order the judge removed from the case because she’s through with it. The appearance of impropriety in this case is too attenuated to justify that extraordinary remedy.
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Opinions March 3, 2011

March 3, 2011
Indiana Court of Appeals
Indiana Association of Beverage Retailers, Inc. v. Indiana Alcohol and Tobacco Commission, et al.
49A02-1002-PL-125
Civil plenary. Affirms denial of the Indiana Association of Beverage Retailers’ motion for a preliminary injunction against the Indiana Alcohol and Tobacco Commission to enjoin the commission from issuing new beer dealer’s permits in locations in which the statutory limits on the number of beer dealer’s permits have been met or exceeded. The Commission’s interpretation of 7.1-3 is reasonable and doesn’t violate Title 7.1. The IABR also failed to show its members are likely to suffer irreparable harm if no injunction is issued.
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Opinions March 2, 2011

March 2, 2011
Indiana Court of Appeals
County Council of Porter County v. Northwest Indiana Regional Dev. Authority, et al.
37A04-1004-CT-291
Civil tort. Affirms summary judgment for the Northwest Indiana Regional Development Authority and the denial of the council’s motion for summary judgment on the council’s complaint seeking declaratory judgment it has the right to withdraw from the RDA. Porter County cannot withdraw from the RDA and the council waived its argument that the original legislation establishing the RDA Act is unconstitutional special legislation.
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Opinions March 1, 2011

March 1, 2011
Indiana Court of Appeals
Auto-Owners Insurance Company v. Gary Hughes
18A02-1006-PL-659
Civil. Reverses and remands entry of judgment in favor of appellee-plaintiff Gary Hughes on his contract claim in the amount of $166,792.83. Auto-Owners contends, inter alia, that the trial court erred in denying its summary judgment motion on the basis that Hughes’ suit was barred by a one-year limitation in the relevant insurance policy.
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Opinions Feb. 28, 2011

February 28, 2011
Indiana Court of Appeals
David E. Schalk v. State of Indiana
53A01-1005-CR-210
Criminal. Affirms conviction of Class A misdemeanor attempted possession of marijuana. Schalk arranged a drug buy to try to discredit a witness against his client. An attorney is not exempt from criminal law even if his only purpose is the defense of his client.
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Opinions Feb. 25, 2011

February 25, 2011
Indiana Court of Appeals
Brian Holtzleiter v. Angela Holtzleiter
48A02-1006-DR-736
Domestic relation. Reverses denial of Brian’s petition to modify child support. He hasn’t waived his argument that he is entitled to modification of child support under the requirement that the current support obligation was 20 percent different from what would be required under the guidelines and it had been at least a year since the support order was issued. Remands for the issuance of a new child support order.
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Opinions Feb. 24, 2011

February 24, 2011
Indiana Court of Appeals
French C. Mason v. State of Indiana
49A02-1005-CR-475
Criminal. Affirms convictions of Class D felonies resisting law enforcement and unlawful use of body armor. The trial court had sufficient evidence to show Mason resisted law enforcement and his crime rose to the Class D felony level and to conclude Mason intended to wear body armor in the aid of the felony of resisting law enforcement through the use of a vehicle.
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Opinions Feb. 23, 2011

February 23, 2011
Indiana Court of Appeals
Debra K. Sands v. Helen HCI, LLC
06A01-1005-CC-231
Civil collections. Reverses denial of Sands’ motion to enforce a settlement agreement between herself, Helen HCI LLC and two other companies, providing for dismissal with prejudice of Helen HCI’s complaint against Sands in Indiana and dismissal with prejudice of Sands’ complaint against Helen HCI and the other companies in a Wisconsin suit. The parties entered into a binding contract which required the subsequent execution of a document memorializing their agreement and there is no uncertainty as to any substantial term of the settlement contract.
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Opinions Feb. 22, 2011

February 22, 2011
7th Circuit Court of Appeals
United States of America v. Roger D. Slone
09-4089
U.S. District Court, Northern District of Indiana, Hammond Division, Judge Rudy Lozano.
Criminal. Affirms conviction of conspiracy to distribute marijuana and sentence of 120 months in prison. The search incident to his arrest was reasonable and the vehicle evidence was properly admitted against him.
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Opinions Feb. 21, 2011

February 21, 2011
Indiana Court of Appeals
Joshua Burke v. State of Indiana
49A02-1006-CR-660
Criminal. Affirms conviction of Class B felony burglary. Indiana Code Section 35-43-2-1(1)(B)(ii), which enhances burglary from a Class C felony to Class B felony if the building or structure burgled is used for religious worship, does not violate the Establishment Clause of the First Amendment or Article 1, Section 4 of the Indiana Constitution.
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Opinions Feb. 18, 2011

February 18, 2011
Indiana Court of Appeals
Term. of Parent-Child Rel. of M.W.; M.W. v. I.D.C.S.
32A01-1007-JT-322
Juvenile. Reverses termination of parental rights. Given the father’s efforts to comply with the amended plan and his release from incarceration soon after the hearing date, the trial court’s findings aren’t supported by clear and convincing evidence.
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Opinions Feb. 17, 2011

February 17, 2011
Indiana Court of Appeals
Ahmad Foster v. State of Indiana (NFP)
49A02-1005-CR-579
Criminal. Affirms denial of motion to modify sentence.
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Opinions Feb. 16, 2011

February 16, 2011
7th Circuit Court of Appeals
Jeff Whitely, et al. v. Anthony Moravec, et al.
09-3302
U.S. District Court, Southern District of Indiana, Indianapolis Division. Judge David F. Hamilton.
Civil. Plaintiffs sued an Indiana company incorporated in New York to satisfy the penalty claims after the Indiana company entered into bankruptcy and was late paying wages and fringe benefits. Affirms the District Court correctly concluded that New York Bus. Corp. L. Section 630(a) doesn’t make defendants liable for a penalty under Indiana law.
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Opinions Feb. 15, 2011

February 15, 2011
Indiana Court of Appeals
K.D., et al. Alleged to be C.H.I.N.S.; S.S. v. Indiana Dept. of Child Services, et al.
49A02-1004-JC-462
Juvenile. Reverses and remands juvenile court’s adjudication that the appellant-respondent’s stepchildren were children in need of services. Concludes that where, as here, one party admits to CHINS allegations while another denies them, due process entitles the contesting party to a fact-finding hearing and adjudication. The mother admitted to the allegations in the petition, but the stepfather denied the allegations and requested a fact-finding hearing.
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Opinions Feb. 14, 2011

February 14, 2011
7th Circuit Court of Appeals
Cynthia Kartman, et al. v. State Farm Mutual Automobile Insurance Co., et al.
09-1725
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge William T. Lawrence.
Civil. Reverses District Court ruling that a class claim for injunctive relief could proceed under Federal Rules of Civil Procedure Rule 23(b)(2) and certification of a class to determine whether State Farm should be required to re-inspect policyholders’ roofs pursuant to a uniform and objective standard. There is no contract or tort-based duty requiring the insurer to use a particular standard for assessing hail damage. Also, the requested injunction is neither appropriate nor final.
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Opinions Feb. 11, 2011

February 11, 2011
7th Circuit Court of Appeals
Mouhamadou M. Sow v. Fortville Police Department, et al.
10-2188
U.S. District Court, Southern District of Indiana, Indianapolis Division, Chief Judge Richard L. Young
Civil. Affirms District Court’s grant of summary judgment to the Fortville Police Department, Officer Michael Fuller of the Fortville Police Department, and the McCordsville Police Department. Sow’s action was brought under 42 U.S.C. sections 1983, 1985, and 1986 after he was arrest for forgery but the charges were later dropped. Sow also alleged numerous state law claims, asserting that the District Court had supplemental jurisdiction over those claims.
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Opinions Feb. 10, 2011

February 10, 2011
Indiana Supreme Court
Killbuck Concerned Citizens Association v. J.M. Corporation and Ralph Reed
48S00-1003-PL-158
Civil plenary. Reverses trial court grant of J.M. Corporation’s motion for summary judgment on the grounds that Indiana Code Section 13-20-2-11, which would require further review and approval of zoning, violated the Indiana Constitution and remands for further proceedings. Declines to decide the constitutional issue, but finds because J.M. Corporation’s facilities accepted wasted before April 1, 2008, Indiana Code Section 13-20-2-11 doesn’t apply.
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Opinions Feb. 9, 2011

February 9, 2011
Indiana Supreme Court
Indiana Dept. of State Revenue v. Belterra Resort Indiana, LLC
49S10-1010-TA-519
Tax. Grants rehearing to address the question of whether Belterra is subject to a tax penalty. Remands to the Indiana Tax Court to determine the timeliness of Belterra’s argument and, if timely, whether Belterra is subject to the penalty and, if so, whether the penalty should be waived. Affirms original opinion in all other respects. Justice Dickson concurs in result, believing the rehearing should also be granted to revisit the previous decision on the “step transaction” issue.
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Opinions Feb. 8, 2011

February 8, 2011
Indiana Supreme Court
Mariea L. Best v. Russell C. Best
06S05-1102-CV-73
Civil. Affirms trial court grant of primary physical custody of M.B. to father. The trial court made the necessary findings that there has been a substantial change in one or more of the statutory factors and that the modification of physical custody is in M.B.’s best interests. Reverses the finding that the mother is in contempt. Justice Sullivan dissented and would deny transfer. Justice David did not participate.
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  1. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  2. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  3. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

  4. When I hear 'Juvenile Lawyer' I think of an attorney helping a high school aged kid through the court system for a poor decision; like smashing mailboxes. Thank you for opening up my eyes to the bigger picture of the need for juvenile attorneys. It made me sad, but also fascinated, when it was explained, in the sixth paragraph, that parents making poor decisions (such as drug abuse) can cause situations where children need legal representation and aid from a lawyer.

  5. Some in the Hoosier legal elite consider this prayer recommended by the AG seditious, not to mention the Saint who pledged loyalty to God over King and went to the axe for so doing: "Thomas More, counselor of law and statesman of integrity, merry martyr and most human of saints: Pray that, for the glory of God and in the pursuit of His justice, I may be trustworthy with confidences, keen in study, accurate in analysis, correct in conclusion, able in argument, loyal to clients, honest with all, courteous to adversaries, ever attentive to conscience. Sit with me at my desk and listen with me to my clients' tales. Read with me in my library and stand always beside me so that today I shall not, to win a point, lose my soul. Pray that my family may find in me what yours found in you: friendship and courage, cheerfulness and charity, diligence in duties, counsel in adversity, patience in pain—their good servant, and God's first. Amen."

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