Indiana Court of Appeals

Ex-wife allowed to enter QDRO 20 years after divorce

December 5, 2013
Jennifer Nelson
In a matter of first impression regarding when a qualified domestic relations order must be filed, the Indiana Court of Appeals held that a woman who waited 20 years after her divorce to have her ex-husband sign a QDRO for division of his pension may still be able to submit it.
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Policy provisions preclude coverage in settlement of class claims

December 5, 2013
Jennifer Nelson
Because the “voluntary payment” and “legally obligated to pay” provisions precluded coverage, a trial court properly entered partial judgment in favor of an insurer of a distillery involved in a settlement over damages caused to nearby buildings by the distillation process.
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Husband can’t recover insurance proceeds after wife burns down house

December 4, 2013
Jennifer Nelson
The Indiana Court of Appeals Wednesday held that when an insurance company includes an explicit exclusion in its policy to cover loss resulting from an intentional act by a co-insured, the court will enforce that exclusion. Because a man’s policy included such an exclusion, he can’t recover insurance proceeds after his wife burnt down their home on purpose.
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State, IBM contest $62 million award for canceled welfare contract

December 4, 2013
Dave Stafford
Indiana Court of Appeals judges spent the better part of a 90-minute oral argument Nov. 25 focused on whether a trial judge’s order applied the proper legal standards in awarding $62 million to IBM after the state canceled its $1.3 billion contract to overhaul Indiana’s welfare administration.
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Non-custodial parent must still pay arrearages to cover funeral expenses

November 27, 2013
Marilyn Odendahl
An emancipated child will be able to collect child support arrearages to pay for her custodial parent’s funeral but she and her sibling will not be allowed to accept the remainder of the accrued support payments, ruled the Indiana Court of Appeals.
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COA reversal: Property manager can’t keep renter’s late fees

November 27, 2013
Dave Stafford
A property owner’s lawsuit seeking a class action against a property management company that kept late fees paid by renters was revived by the Court of Appeals on Wednesday. The appellate panel reversed dismissal of the suit and ordered further proceedings.
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Trial court must properly exercise discretion on sentencing

November 27, 2013
Marilyn Odendahl
Although a trial court had the ability to deny a man credit for time served, the Indiana Court of Appeals ruled the lower court did not follow proper procedure when it granted actual days credit.
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Mother who was abused may be required to help fund father's supervised visitation

November 27, 2013
Dave Stafford
The Indiana Court of Appeals has ruled that a domestic violence victim whose earnings since have increased may have to pay for supervised child-visitation services that the father is unable to afford.
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Verification letters support estoppel argument

November 27, 2013
Marilyn Odendahl
A series of verification letters from a subcontractor to a contractor provided the grounds for the doctrine of promissory estoppel from being applied to commercial transactions.
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Judges divided over complicated issue of wrongful-death attorney fees

November 27, 2013
Jennifer Nelson
A complex and complicated case regarding whether attorney fees awarded from the Indiana Patient’s Compensation Fund are capped at 15 percent led to a split in the Indiana Court of Appeals. The majority decided that the cap does not apply to the calculation of excess damages of any type from the fund.
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Prosecutor’s ‘CSI’ remarks don’t reverse molestation conviction

November 27, 2013
Dave Stafford
A prosecutor’s comments to a prospective juror comparing the evidence needed for a conviction to that seen in a typical “CSI” television show weren’t fundamental error, a Court of Appeals panel ruled in affirming a man’s child-molestation conviction.
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Malpractice complaint hobbled by ongoing foot pain

November 27, 2013
Marilyn Odendahl
A woman who suffered with a troubled toe for four years got her medical malpractice claim booted by the Indiana Court of Appeals for waiting too long to file the complaint.
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Panel affirms robbery conviction in confrontation clause appeal

November 27, 2013
Dave Stafford
A defendant who was denied the opportunity to cross-examine an expert witness who provided cell phone records placing him near the scene of a Morgantown bank robbery wasn’t deprived a fair trial, the Court of Appeals ruled Wednesday.
 
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Judges affirm man must pay $5,000 in attorney fees to ex-wife

November 26, 2013
Jennifer Nelson
An Allen County man was unsuccessful in his attempts to persuade the Indiana Court of Appeals to reverse the order he pay $5,000 in attorney fees to his ex-wife in litigation over their child’s contact with the ex-wife’s new husband.
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COA: Wife of man injured at work entitled to benefits

November 26, 2013
Jennifer Nelson
The Indiana Court of Appeals ruled that the Indiana Worker’s Compensation Board’s decision to deny benefits to a man injured at work was unsupported by the evidence. The judges ordered a determination of the benefits that the man’s widow should receive on his behalf.
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Commitment statute not unconstitutional as applied to man with brain injury

November 26, 2013
Jennifer Nelson
A Marion Superior Court did not violate a defendant’s due process rights in ordering his commitment to the Department of Mental Health and Addiction after finding him incompetent to stand trial. Evan Leedy suffered a traumatic brain injury in an auto accident that killed his girlfriend and injured another driver.
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Order for IBM to pay subcontractor in state suits affirmed

November 26, 2013
Dave Stafford
An appeals court Tuesday affirmed trial court orders that IBM pay a subcontractor for costs it incurred related to lawsuits over the failed $1.3 billion Family and Social Services Administration modernization contract.
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Court properly declined to modify spousal maintenance agreement

November 26, 2013
Jennifer Nelson
An ex-wife must pay her husband $4,000 a month in spousal maintenance under an agreement she signed, the Indiana Court of Appeals held Tuesday, affirming a trial court’s decision to deny the woman’s request to modify the maintenance.
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IBM seeks greater judgment; state claims $62 million award erroneous

November 25, 2013
Dave Stafford
A $62 million judgment against the state for canceling a contract with IBM to overhaul Indiana’s social services administration is clearly erroneous, an attorney for the state argued Monday, while an IBM lawyer argued the company was entitled to even greater damages.
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Foster child’s claim against health center falls outside Medical Malpractice Act

November 21, 2013
Jennifer Nelson
A Morgan County court erred when it granted Adult and Child Mental Health Center Inc.’s motion to dismiss a lawsuit filed on behalf of a child in foster care who suffered severe brain damage from a near-drowning. The center argued the complaint was subject to the Indiana Medical Malpractice Act.
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Text messages properly admitted in custody dispute

November 20, 2013
Jennifer Nelson
The Indiana Court of Appeals held Wednesday that evidence presented during a custody modification hearing laid a sufficient foundation for the admission of text messages between the mother and father. 
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Court rules in favor of subcontractor suing Fort Wayne

November 20, 2013
Jennifer Nelson
The Indiana Court of Appeals held Wednesday that a trial court properly granted summary judgment for a subcontractor seeking payment from the city of Fort Wayne after the general contractor working on the city park project declared bankruptcy.
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Court finds facilities have immunity in suit over detention

November 20, 2013
Jennifer Nelson
The three unidentified entities involved in the detention of a Bloomington man for several days after he refused in-patient treatment for alcoholism are entitled to immunity in his lawsuit alleging medical malpractice, the Indiana Court of Appeals ruled Wednesday.
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Neighbors entitled to 12-foot strip of land under doctrine by acquiescence

November 20, 2013
Jennifer Nelson
In a dispute between longtime neighbors over use and ownership of a strip of land, the Indiana Court of Appeals affirmed summary judgment for one set of neighbors based on the doctrine of title by acquiescence.
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COA: Possession of syringe doesn’t support conviction

November 20, 2013
Jennifer Nelson
Because the state did not introduce evidence that a man intended to use a syringe found in his pocket after being stopped by police to inject a controlled substance into his body, his conviction for Class A misdemeanor possession of paraphernalia must be reversed, the Indiana Court of Appeals concluded.
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  1. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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