Opinions

Opinions Oct. 7, 2015

October 7, 2015
7th Circuit Court of Appeals
Tom Allen Manuel v. J.A. Terris
15-1392
U.S. District Court, Southern District of Indiana, Terre Haute Division. Judge Jane Magnus-Stinson.
Civil. Affirms denial of petition for habeas corpus, directed at the prison warden, for a reduction of Manuel’s prison sentence. The period that Manuel wants credited against his federal sentence had already been credited toward his state sentence.
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Opinions Oct. 6, 2015

October 6, 2015
7th Circuit Court of Appeals
Bryana Bible, Individually and on Behalf of the Proposed Class v. United Student Aid Funds, Inc.
14-1806
Appeal from the U.S. District Court for the Southern District of Indiana, Indianapolis Division
Judge Tanya Walton Pratt
Civil. Denies petition for rehearing en banc of the panel decision. The panel reversed and remanded the District Court’s dismissal of Bible’s complaint against a creditor in a student loan default case. None of the panelists who wrote three separate opinions, nor other Circuit judges, favored rehearing en banc. Judge Frank Easterbrook wrote a concurrence to underscore that deference to federal agency positions affirmed in Auer v. Robbins, 519 U.S. 452 (1997), has been assailed by recent Supreme Court rulings suggesting that decision “may not be long for this world.”
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Opinions Oct. 5, 2015

October 5, 2015
Indiana Court of Appeals
Ronald C. Weyland v. State of Indiana (mem. dec.)
48A04-1409-CR-446
Criminal. Judges L. Mark Bailey and Michael Barnes grant rehearing and remand to the trial court to resentence Weyland. Judge Patricia Riley votes to deny the petition for rehearing.
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Opinions Oct. 2, 2015

October 2, 2015
Indiana Court of Appeals
Courtney R. Robbins v. The Trustees of Indiana University and Clarian Health Partners, Inc.
49A04-1412-CT-583
Civil tort. Affirms summary judge in favor of the Trustees of Indiana University and Clarian Health Partners Inc. This suit was filed after Tiffaney DeBow, a licensed practical nurse, accessed Robbins’ medical files and posted them on the Internet. The COA ruled Clarian is not vicariously liable for DeBow’s actions because she was not directly employed by Clarian. Similarly finds IU is not subject to vicarious liability because DeBow was acting outside the scope of her employment. Holds IU is not guilty of negligent hiring. Judge Terry Crone concurs in part and concurs in result in part. He urges the Indiana Supreme Court to revisit invasion of privacy precedent in light of today’s rapidly changing technology. 

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Opinions Oct. 1, 2015

October 1, 2015
Indiana Court of Appeals
Jason Lee DeGroot v. State of Indiana (mem. dec.)
45A03-1412-CR-457
Criminal. Affirms sentence following guilty plea to Class A felony voluntary manslaughter.
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Opinions Sept. 30, 2015

September 30, 2015
Indiana Court of Appeals
In Re: The Matter of the Petition to Expunge Conviction Records of James D. Borel v. State of Indiana
41A01-1412-MI-533
Miscellaneous. Reverses denial of Borel’s motion to correct error as the denial was against logic, facts and circumstances presented. There is insufficient evidence that he still owed $37 in court costs stemming from a 1976 case.
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Opinions Sept. 29, 2015

September 29, 2015
7th Circuit Court of Appeals
Defender Security Company v. First Mercury Insurance Company
14-1805
U.S. District court, Southern District of Indiana, Indianapolis Division, Judge Sarah Evans Barker.
Civil. Affirms First Mercury Insurance Co.’s motion to dismiss Defender Security Co.’s lawsuit alleging breach of contract and bad faith, which sought a declaratory judgment that First Mercury owed it a duty to defend. Based on Indiana’s definition of “publication” in the defamation context, the term “publication” in the insurance policy was not susceptible to Defender’s interpretation that its recording and storing of customers’ information constitutes “publication” so as to trigger defense by First Mercury in a lawsuit.
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Opinions Sept. 28, 2015

September 28, 2015
Indiana Court of Appeals
Michael R. Pike, and Chassidy L. Pike v. Conestoga Title Insurance Co.
16A05-1501-CT-27
Civil tort. Affirms summary judgment in favor of Conestoga Title Insurance Co. The Pikes failed to promptly notify Conestoga about legal notices that their property was being placed in a tax sale.
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Opinions Sept. 25, 2015

September 25, 2015
Indiana Court of Appeals
M.L. v. M.F. and M.Fu. (mem. dec.)
33A01-1505-DR-318
Domestic relation. Reverses child support order entered upon M.L.’s petition for child support modification.
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Opinions Sept. 24, 2015

September 24, 2015
Indiana Supreme Court
William Clyde Gibson III v. State of Indiana
22S00-1206-DP-359
Death penalty. Affirms the imposing of the death penalty following Gibson’s conviction for murder. Finds the sentence is not inappropriate “in light of the horrific manner in which Gibson took (his victim’s) life and his lack of redeeming character traits.” In regards to the jury, rules the trial court did not err in refusing to dismiss the entire venire panel and did not abuse its discretion in denying Gibson’s request to ask a case-specific question during voir dire, his for-cause juror challenges and his request to instruct the jury on voluntary manslaughter. Holds the trial court also did not abuse its discretion in denying Gibson’s request for a fourth continuance.
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Opinions Sept. 23, 2015

September 23, 2015
Indiana Court of Appeals
In the Matter of Term. of the Parent-Child Relationship of: B.H. and S.H., and B.H. and M.B. v. The Ind. Dept. of Child Services
91A02-1504-JT-213
Juvenile. Affirms termination of parental rights. The trial court did not abuse its discretion by denying mother’s last-minute motions to continue termination hearings. There is no reason to conclude mother did not receive a fair hearing. The juvenile court did not err by finding that the termination of the relationship with mother and father is in the best interests of the children. The fact of father’s incarceration is not the sole evidence supporting termination.
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Opinions Sept. 22, 2015

September 22, 2015
Indiana Court of Appeals
Kile Richard Stockert v. State of Indiana
Criminal. Affirms Department of Correction designation that Stockert is a sexually violent predator and offender against children. Based on the record and Ind. Code § 35-38-1-7.5(b) and § 11-8-8-19(b), the trial court did not err in denying Stockert’s petition for declaratory judgment.
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Opinions Sept. 21, 2015

September 21, 2015
Indiana Supreme Court
Ray Clifton v. Ruby McCammack

49S02-1504-CT-228
Civil tort. Affirms trial court grant of summary judgment in favor of motorist Ruby McCammack in a negligent infliction of emotional distress lawsuit filed by Ray Clifton, the father of a moped driver struck and killed in a crash. Clifton may not recover under the bystander rule because he does not meet the three circumstantial factors -- that the scene viewed was essentially as it was at the time of the incident, that the victim was in essentially the same condition as immediately following the incident, and that the claimant was not informed of the incident before coming upon the scene.
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Opinions Sept. 18, 2015

September 18, 2015
Indiana Supreme Court
Blake Layman & Levi Sparks v. State of Indiana
20S04-1509-CR-548.
Criminal. Vacates conviction of murder and remands for entry of conviction of Class B felony burglary and for Layman and Sparks to be resentenced accordingly. Members of the “Elkhart 4,” Layman and Sparks were convicted of murder in the death of Danzele Johnson, who was shot by a homeowner whose house the suspects burglarized. There was simply nothing about the Appellants’ conduct or the conduct of their cohorts that was ‘clearly the mediate or immediate cause’ of their friend’s death, the court held.
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Opinions Sept. 17, 2015

September 17, 2015
Indiana Court of Appeals
Tywaun Carter v. State of Indiana
49A04-1502-CR-52
Criminal. Affirms Carter’s conviction of two counts of Level 1 felony rape and 32-year sentence on each count to be served concurrently in the Indiana Department of Correction. Finds the victim’s work as a prostitute did not render her testimony and statements unbelievable, incredible or improbable. Rules the fact that the victim had been engaging in prostitution does not excuse Carter’s violent behavior or make his sentence inappropriate.  
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Opinions Sept. 16, 2015

September 16, 2015
Indiana Court of Appeals

 

R.L. Turner Corporation v. William Wressell
06A05-1411-PL-540
Civil plenary. Affirms the trial court’s inclusion of fringe benefits in the calculation of total compensation and the calculation of attorney fees. Finds the trial court did not include any of Wressell’s overtime in its calculation of total compensation. Remands with instructions for the trial court to award Wressell an additional $1501.68.   

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Opinions Sept. 15, 2015

September 15, 2015
Indiana Court of Appeals
Hoker Trucking, LLC and Linda L. Phillips v. Pamela K. Robbins, as Administratrix of the Estate of Mike Douglas Robbins Deceased
89A01-1411-CT-468
Civil tort. Reverses award of attorney fees and prejudgment interest to Pamela Robbins. Finds as the surviving spouse, Robbins is not entitled to recover attorney costs under the adult provision (Indiana Code 34-23-1-2) in the Indiana general wrongful death statute.
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Opinions Sept. 14, 2015

September 14, 2015
Indiana Court of Appeals
Bryan E. Mitten v. Cynthia L. Mitten
11A01-1501-DR-8
Domestic. Affirms determination of Bryan E. Mitten’s child support obligations and division of the parties’ debts. The trial court ordered that the adoptive father pay $235 per week in child support retroactive to the filing of the divorce petition. The trial court did not abuse its discretion in determining support, and there was no error in the trial court’s division of debt.
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Opinions Sept. 11, 2015

September 11, 2015
Indiana Court of Appeals
Robert Blackford v. Boone County Area Plan Commission and Boone County Drainage Board
06A01-1410-MI-437
Miscellaneous. Affirms denial of Blackford’s oral request for a continuance made on the day of trial. Finds Blackford did not articulate any good cause for a continuance or show that he would be prejudiced.
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Opinions Sept. 10, 2015

September 10, 2015
Indiana Supreme Court
Dennis Boyer and Richard Smith v. Ernest Smith, Suzanne Cassidy, Esq., and In-Plas, Inc.
15S01-1509-CT-526
Civil tort. Affirms trial court ruling that it lacked personal jurisdiction over Cassidy, an attorney licensed in Kentucky. Rules Cassidy’s contacts with Indiana were products of her relationship with the plaintiffs and her client.
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Opinions Sept. 9, 2015

September 9, 2015
7th Circuit Court of Appeals
The following opinion was posted after IL deadline Tuesday:
United States of America v. Eugene Clarke
14-3515
Appeal from the U.S. District Court for the Northern District of Indiana, Hammond Division
Judge Rudy Lozano
Criminal. Affirms conviction for seven counts of filing a false claim with the United States in violation of 18 U.S.C. 287. Rules the government did not have to prove Clarke willfully submitted false claims. Finds Clarke’s “patently false and utterly groundless” tax returns provided sufficient evidence that he knew he was filing claims with false information. Concludes the District Court did not abuse its discretion when it refused to give Clarke’s good faith instruction to the jury.
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Opinions Sept. 8, 2015

September 8, 2015
Indiana Court of Appeals
Deonte R. Hester v. State of Indiana (mem. dec.)
82A01-1411-CR-515
Criminal. Affirms 30-year aggregate sentence and convictions of Class A felony possession of cocaine, Class C felony operating a vehicle while privileges are forfeited for life and Class A misdemeanor counts of resisting law enforcement and possession of marijuana.
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Opinions Sept. 4, 2015

September 4, 2015
7th Circuit Court of Appeals
Grace Schools, et al., and Diocese of Fort Wayne-South Bend, Inc., et al. v. Sylvia Mathews Burwell, et al.
14-1430-1431
Appeals from the U.S. District Court for the Northern District of Indiana
Judge Jon De Guilio
Civil. Reverses preliminary injunction in favor of the plaintiffs, preventing the federal government from enforcing the “contraceptive mandate” of the Patient Protection and Affordable Care Act. However, extends the injunction for 60 days to allow the District Court the time to address additional arguments made by the parties. Finds the accommodation does not impose a substantial burden on the plaintiffs’ religious beliefs. Judge Daniel Manion dissents, arguing nonprofits have shown accommodation violates the federal Religious Freedom Restoration Act.
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Opinions Sept. 3, 2015

September 3, 2015
Indiana Court of Appeals
Memory Gardens Management Corporation, Inc. v. Liberty Equity Partners, LLC, and Old Bridge Funeral Home, LLC
49A02-1501-CC-1
Civil collection. Affirms grant of the Old Bridge parties’ motion for summary judgment and affirms the denial of Memory Gardens’ cross-motion for summary judgment. Remands to decide reasonable appellate attorney fees. Finds Memory Gardens’ failure to object to receiver’s final report forever bars it from claiming the $450,000 demand note. Also rules receiver abandoned Memory Gardens’ claims for the demand note.
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Opinions Sept. 2, 2015

September 2, 2015
Indiana Supreme Court
David Anderson, Joe Wray, John Kennard, Commissioners, and Board of Trustees, Brown County Fire Protection District v. Susanne Gaudin, Janet Kramer, and Ruth Reichmann
07S01-1505-PL-284
Civil plenary. Reverses summary judgment finding that a county board of commissioners lacked authority to amend an ordinance that previously established a countywide fire protection district. Majority concludes that under the Home Rule Act, boards of county commissioners are authorized to amend fire protection districts, even if an amendment dissolves the district. The opinion written by Justice Brent Dickson was joined by Justice Mark Massa and Chief Justice Loretta Rush; Justice Steven David concurred with a separate opinion. Justice Robert Rucker dissented and would affirm the trial court judgment in favor of property owners.
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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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