Opinions March 11, 2014

March 11, 2014
Indiana Supreme Court
State of Indiana v. Adrian Lotaki
Criminal. Reverses sentencing order, holding the trial court erred in calculating credit time for a battery committed while Adrian Lotaki was serving a sentence in the Department of Correction. Because sentences for crimes committed in prison are by statute served consecutively, the credit time awarded against the battery conviction effectively enabled Lotaki to serve part of his consecutive sentence concurrently. Remands for resentencing.

Opinions March 10, 2014

March 10, 2014
Indiana Court of Appeals
Jeff L. Ewing and Renee Ewing, Household Finance Corporation III v. U.S. Bank, N.A., as Trustee for the Structured Asset Securities Corp., Series 2005-GEL4
Mortgage foreclosure. Finds summary judgment in favor of U.S. Bank was appropriate. Also affirms U.S. Bank’s motion to dismiss the Ewings’ supplemental complaint for failure to state a claim upon which relief could be granted. The Ewings argued the bank failed to act in good faith during the settlement discussions as required by the Alternative Dispute Resolution rules. The COA held the settlement talks were not a mediation, so the A.D.R. rules did not apply.

Opinions March 7, 2014

March 7, 2014
Indiana Court of Appeals
Jimel Pimpton v. State of Indiana (NFP)
Criminal. Affirms revocation of placement in community corrections.

Opinions March 5, 2014

March 5, 2014
7th Circuit Court of Appeals
United States of America v. Carol Y. Woodard
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge Larry J. McKinney.
Criminal. Finds the District Court did not abuse its discretion by not ordering a second competency evaluation because the court reached a reasonable conclusion after it reviewed a previous psychological evaluation, considered the advice of two mental health professionals, and considered Woodard’s interactions with her attorney. Finds the District Court violated the ex post facto clause at sentencing by sentencing her under the wrong version of the sentencing guidelines. Remands for resentencing.

Opinions March 4, 2014

March 4, 2014
Indiana Court of Appeals
Commonwealth Land Title Insurance Company v. Stephen W. Robertson, Insurance Commissioner of the State of Indiana, et. al.
Civil plenary. Affirms trial court order upholding an administrative order that Commonwealth take certain actions to cure its violations of the Rate Statute, the Unsafe Business Practices Statute and the Gross Premium Tax Statute. Concludes that substantial evidence supports the IDOI’s determination that Commonwealth violated the statutes and that the cures imposed by the IDOI for Commonwealth’s violations of these statutes are authorized by the Cure Statute.

Opinions March 3, 2014

March 3, 2014
Indiana Court of Appeals
Joseph and M. Carmen Wysocki v. Barbara A. and William T. Johnson, both individually and as Trustees of the Barbara A. Johnson Living Trust
Civil tort. Affirms denial of the Wysockis’ request for attorney fees and additional damages under the Indiana Crime Victims Relief Act. The Wysockis were not victims of the criminal offense of fraud because the Johnsons were not charged with that crime in relation to the sale of the house, much less convicted of it in a court of law. In the absence of such a conviction, the CVRA does not apply.

Opinions Feb. 28, 2014

February 28, 2014
Indiana Court of Appeals
Mary L. Anderson v. Wayne Post 64, American Legion Corp.
Civil tort. Affirms order setting aside its default judgment against Wayne Post 64, American Legion Corp. Anderson failed to serve the American Legion in a manner authorized by the Indiana Trial Rules.

Opinions Feb. 27, 2014

February 27, 2014
7th Circuit Court of Appeals
United States of America v. John A. Peters III
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge Jane E. Magnus-Stinson.
Criminal. Affirms denial of motion to suppress evidence discovered during the search of a car in which Peters was a passenger. The District Court committed no error in crediting the testimony of an experienced police officer who, after observing two cars traveling in tandem for a period of time, said he credibly believed that the trailing car was approximately 75 feet behind the lead car at a speed of approximately 60 miles-per-hour. If an officer knowing these facts could reasonably conclude that this combination of speed and distance violated Indiana law, that is all that is necessary to support probable cause.

Opinions Feb. 26, 2014

February 26, 2014
Indiana Court of Appeals
Robin Harper v. State of Indiana
Criminal. Reverses Harper’s Class A misdemeanor resisting law enforcement conviction. Officers Gillespie and Hartman unlawfully entered Harper’s residence, therefore, the officers were not engaged in the lawful execution of their duties at the time they arrested Harper and then attempted to remove her wedding ring in preparation for booking.

Opinions Feb. 25, 2014

February 25, 2014
Indiana Court of Appeals
James Kindred, Thomas Kindred, and Sam Kindred v. Betty Townsend and Harmon Crone
Civil plenary. Dismisses interlocutory appeal as untimely. Finds the arguments the Kindreds raised in appealing the denial of their motion to dissolve were based on information that was available when the trial court granted the preliminary injunction six months prior. Still, the COA notes it has ruled only that the Kindreds forfeited their right to an interlocutory appeal by failing to timely file. The Kindreds may yet attack the trial court’s interlocutory orders on appeal from the final judgment.

Opinions Feb. 24, 2014

February 24, 2014
7th Circuit Court of Appeals
University of Notre Dame v. Kathleen Sebelius, Secretary of U.S. Department of Health & Human Services, et. al. and Jane Doe 1, et al.
Civil. Affirms on interlocutory appeal denial of an injunction blocking enforcement of the Affordable Care Act’s contraception mandate, holding that the requirement that the university submit a form opting out of paying for contraception services for women did not trigger provision of those services which insurers are required to provide under the law. Circuit Judge Joel Flaum dissented, holding that Notre Dame has shown a likelihood of success on the merits and he would therefore reverse the order denying the injunction.

Opinions Feb. 21, 2014

February 21, 2014
Indiana Court of Appeals
In the Matter of: TLC, a Child Alleged to be a Delinquent Child v. State of Indiana
Juvenile. Affirms commitment of TLC to the Indiana Department of Correction. Finds TLC did not receive unequal treatment and his due process rights were not violated. Rules that the juvenile court had an adequate factual basis to conclude that TLC was guilty of what would be the crime of resisting law enforcement, a Class A misdemeanor, if committed by an adult. Concludes the state sufficiently proved that TLC committed what would have been battery, a Class B misdemeanor, had it been committed by an adult. 

Opinions Feb. 20, 2014

February 20, 2014
Indiana Supreme Court
James T. Mitchell v. 10th and The Bypass, LLC and Elway, Inc.
Civil plenary. Evidence obtained after the entry of an order granting a motion for partial summary judgment may not form the basis for vacating that order on the grounds that a non-final order is subject to revision at any time before the entry of a final judgment. Also concludes that relief from judgment under Ind. Trial Rules is not limited only to final judgments.

Opinions Feb. 19, 2014

February 19, 2014
Indiana Supreme Court
State of Indiana v. William Coats
Criminal. Remands to the trial court with an order to commit Coats to the Division of Mental Health and Addiction. I.C. 35-36-3-1(b) requires trial courts to commit defendants found not competent to stand trial to the DMHA for competency restoration services.

Opinions Feb. 18, 2014

February 18, 2014
Indiana Court of Appeals
Tanner Piotrowski v. State of Indiana
Criminal. Affirms denial of Piotrowski’s motion to exclude any evidence or testimony from the state Department of Toxicology. After reviewing the relevant statutes, finds that the Legislature intended I.C. 10-20-2-7 to effectuate a transfer of control of the Department of Toxicology from the Indiana University School of Medicine to the state of Indiana. Although the Legislature transferred rulemaking authority to the state, it did not specifically require the state to promulgate a new set of rules regarding breath testing and gave the state discretion to rely upon the rules previously in existence. The court did not err when it denied Piotrowski’s motion to exclude.

Opinions Feb. 17, 2014

February 17, 2014
Indiana Court of Appeals
Rakiea McCaskill v. State of Indiana
Criminal. Reverses conviction of Class A misdemeanor intimidation. The state did not provide sufficient evidence to prove beyond a reasonable doubt that McCaskill committed Class A misdemeanor intimidation as charged. The state did produce sufficient evidence that McCaskill committed Class B misdemeanor harassment. Remands to the trial court with instructions to vacate McCaskill’s judgment of conviction for intimidation and to enter a judgment of conviction for McCaskill for Class B misdemeanor harassment.

Opinions Feb. 14, 2014

February 14, 2014
Indiana Court of Appeals
Teaching Our Posterity Success, Inc. v. Indiana Department of Education and Indiana State Board of Education
Civil plenary. Reverses dismissal of Teaching Our Posterity Success’ petition for judicial review challenging a decision by the Department of Education and State Board of Education to remove TOPS from its list of approved supplemental educational services providers. Remands to the DOE for the entry of statutorily mandated findings and conclusions to accompany its final order regarding TOPS.

Opinions Feb. 13, 2014

February 13, 2014
Indiana Supreme Court
Brian Yost v. Wabash College, Phi Kappa Psi Fraternity- Indiana Gamma Chapter at Wabash College, Phi Kappa Psi Fraternity, Inc., and Nathan Cravens
Civil tort. Reverses grant of summary judgment for the campus fraternity but affirms summary judgment for the college and national fraternity organization in the personal injury action brought by a fraternity pledge seeking damages for injuries sustained in an incident at the Phi Kappa Psi fraternity house. Holds that the designated evidence shows that there is no genuine issue as to any material fact and that Wabash College and the national fraternity, Phi Kappa Psi Fraternity, Inc., are each entitled to summary judgment as a matter of law, but that as to the local fraternity, Phi Kappa Psi Fraternity – Indiana Gamma Chapter at Wabash College, there remain genuine issues of material fact that preclude summary judgment. Justice Rucker concurs in part and dissents in part. Remands for further proceedings.

Opinions Feb. 12, 2014

February 12, 2014
Indiana Supreme Court
In the Matter of S.D., Alleged to be a Child in Need of Services, J.B. v. Indiana Department of Child Services
Juvenile. Reverses adjudication that S.D. is a child in need of services. S.D. and her siblings were legitimately in need of services when DCS filed its petitions. But by the fact-finding hearing, mother had voluntarily addressed all but one of those concerns to the trial court’s satisfaction. In view of that judgment, the remaining evidence fails to show that mother was likely to need the court’s coercive intervention to complete that final item — and when that coercion is not necessary, the state may not intrude into a family’s life.

Opinions Feb. 11, 2014

February 11, 2014
Indiana Supreme Court
Paul Stieler Enterprises, Inc., d/b/a Harbor Bay, et al. v. City of Evansville and Evansville Common Council; VFW Post 2953, et al. v. City of Evansville and Evansville Common Council
82S01-1306-CT-436 and 82S01-1306-PL-437
Civil. Strikes down an amended Evansville smoking ban that exempted the Aztar riverboat casino in a 3-2 decision. Chief Justice Brent Dickson and Justices Mark Massa and Steven David held that the exception violated Article 1, Section 23 of the Indiana Constitution because it conferred a privilege on the casino that wasn’t extended to similarly situated bars, taverns and clubs. Dissenting Justices Loretta Rush and Robert Rucker found the casino’s inherent characteristics of producing a large flow of revenue and attracting a mostly out-of-town clientele placed it in a distinct group from the tavern and club establishment that challenged the exemption.

Opinions Feb. 10, 2014

February 10, 2014
7th Circuit Court of Appeals
United States of America v. Timmothy Williams
Criminal. Vacates sentence for convictions related to identity theft and remands to the District Court. In accordance with the ruling in Peugh v. United States, 133 S. Ct. 2072, 2078 (2013), sentencing guidelines that were stricter than those in place at the time Williams committed the crime were improperly applied when he was sentenced to 56 months in prison for identity theft convictions plus 24 months for aggravated identity theft. Remands to sentence Williams to 30 to 37 months in prison – the range under the guidelines in place at the time of his offenses.

Opinions Feb. 7, 2014

February 7, 2014
7th Circuit Court of Appeals
Gary W. Helman v. Bruce Duhaime, et al.
Civil. Affirms summary judgment in favor of defendants in a civil rights suit alleging police used excessive force when they shot Gary Helman, ending an armed standoff that began when authorities attempted to serve a warrant for his arrest at his home in Cromwell. Helman’s § 1983 complaint cannot survive summary judgment because he pleaded guilty to a class D felony count of resisting law enforcement in which evidence showed authorities only fired after Helman reached for his firearm.

Opinions Feb. 6, 2014

February 6, 2014
Indiana Supreme Court
Veolia Water Indianapolis, LLC, City of Indianapolis, Department of Waterworks, and City of Indianapolis v. National Trust Insurance Company and FCCI Insurance Company a/s/o Ultra Steak, Inc., et. al.
Civil plenary. Holds that a private, for-profit company under the circumstances of this case is not entitled to common law sovereign immunity from liability for damages resulting from a fire that destroyed a Texas Roadhouse restaurant. Accordingly, affirms the trial court’s rulings that Veolia is not entitled to common law sovereign immunity and that the city is not entitled to statutory sovereign immunity from liability for damages resulting from an inadequate water supply in the hydrants near the restaurant. The city is entitled to common law sovereign immunity, so reverses holding that the city is not entitled to common law sovereign immunity.

Opinions Feb. 5, 2014

February 5, 2014
7th Circuit Court of Appeals
Kendale L. Adams, et al. v City of Indianapolis
U.S. District Court for the Southern District of Indiana, Indianapolis Division, Judge Sarah Evans Barker.
Civil. In a consolidated appeal, affirms entry of summary judgment for the city on the officers’ disparate-treatment claims because the plaintiffs had not produced any evidence that using the test results to make promotions was a pretext for discrimination. Affirms dismissal of new claims brought as barred by res judicata because the same eligibility list generated by the testing process was at issue in the first case.

Opinions Feb. 4, 2014

February 4, 2014
7th Circuit Court of Appeals
Eric Smith v. Executive Director of the Indiana War Memorials Commission, et al.
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge William T. Lawrence.
Civil. Reverses denial of Smith’s motion for a preliminary injunction against the enforcement of a policy that requires a permit before gathering on commission properties. The new policy, revised shortly after the District Court denied the motion, retains the problematic features of the old policy. Also, Smith has met the requirements for obtaining a preliminary injunction. Remands with instructions to enter an appropriate preliminary injunction.
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  1. I think the cops are doing a great job locking up criminals. The Murder rates in the inner cities are skyrocketing and you think that too any people are being incarcerated. Maybe we need to lock up more of them. We have the ACLU, BLM, NAACP, Civil right Division of the DOJ, the innocent Project etc. We have court system with an appeal process that can go on for years, with attorneys supplied by the government. I'm confused as to how that translates into the idea that the defendants are not being represented properly. Maybe the attorneys need to do more Pro-Bono work

  2. We do not have 10% of our population (which would mean about 32 million) incarcerated. It's closer to 2%.

  3. If a class action suit or other manner of retribution is possible, count me in. I have email and voicemail from the man. He colluded with opposing counsel, I am certain. My case was damaged so severely it nearly lost me everything and I am still paying dearly.

  4. There's probably a lot of blame that can be cast around for Indiana Tech's abysmal bar passage rate this last February. The folks who decided that Indiana, a state with roughly 16,000 to 18,000 attorneys, needs a fifth law school need to question the motives that drove their support of this project. Others, who have been "strong supporters" of the law school, should likewise ask themselves why they believe this institution should be supported. Is it because it fills some real need in the state? Or is it, instead, nothing more than a resume builder for those who teach there part-time? And others who make excuses for the students' poor performance, especially those who offer nothing more than conspiracy theories to back up their claims--who are they helping? What evidence do they have to support their posturing? Ultimately, though, like most everything in life, whether one succeeds or fails is entirely within one's own hands. At least one student from Indiana Tech proved this when he/she took and passed the February bar. A second Indiana Tech student proved this when they took the bar in another state and passed. As for the remaining 9 who took the bar and didn't pass (apparently, one of the students successfully appealed his/her original score), it's now up to them (and nobody else) to ensure that they pass on their second attempt. These folks should feel no shame; many currently successful practicing attorneys failed the bar exam on their first try. These same attorneys picked themselves up, dusted themselves off, and got back to the rigorous study needed to ensure they would pass on their second go 'round. This is what the Indiana Tech students who didn't pass the first time need to do. Of course, none of this answers such questions as whether Indiana Tech should be accredited by the ABA, whether the school should keep its doors open, or, most importantly, whether it should have even opened its doors in the first place. Those who promoted the idea of a fifth law school in Indiana need to do a lot of soul-searching regarding their decisions. These same people should never be allowed, again, to have a say about the future of legal education in this state or anywhere else. Indiana already has four law schools. That's probably one more than it really needs. But it's more than enough.

  5. This man Steve Hubbard goes on any online post or forum he can find and tries to push his company. He said court reporters would be obsolete a few years ago, yet here we are. How does he have time to search out every single post about court reporters and even spy in private court reporting forums if his company is so successful???? Dude, get a life. And back to what this post was about, I agree that some national firms cause a huge problem.