Opinions

Opinions Aug. 9, 2012

August 9, 2012

7th Circuit Court of Appeals
Danny R. Richards v. Michael Mitcheff, et al.
11-3227
U.S. District Court, Southern District of Indiana, Indianapolis Division. Judge Sarah Evans Barker.
Civil. Reverses dismissal of Richards’ lawsuit alleging the defendants violated his Eighth Amendment rights by indifference to his serious medical condition and remands for further proceedings. The suit could not be properly dismissed under Rule 12(b)(6) or Rule 12(c) because Indiana allows the statute of limitations to be tolled while one is incapacitated, which is what Richards argued as to why he didn’t file his complaint within the applicable time period.

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Opinions Aug. 8, 2012

August 8, 2012

7th Circuit Court of Appeals
Michael J. Alexander v. Mark McKinney
11-3539
U.S. District Court, Southern District of Indiana, Indianapolis Division. Chief Judge Richard Young.
Civil. Affirms dismissal of criminal defense attorney Michael Alexander’s lawsuit against Mark McKinney alleging violations of due process after finding McKinney, former Delaware County prosecutor, was entitled to qualified immunity because the complaint did not identify a depravation of a cognizable constitutional right. Alexander’s complaint is merely an attempt to recast an untimely false arrest claim into a due process claim.

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Opinions Aug. 7, 2012

August 7, 2012
Indiana Court of Appeals
Warrick County, Indiana, A Political Subdivision, by and through its County Commissioners, Nova Conner, Don Williams, and Phillip Baxter, and Cincinnati Insurance Co. v. William Hill and Stacy Hill
87A01-1201-PL-8
Civil plenary. Affirms denial of summary judgment for Warrick County in an action brought against it and Cincinnati Insurance Co. by William and Stacy Hill. Agrees with trial court conclusion that the Hills filed their notice under the Indiana Tort Claims Act within 180 days and that the Hills did not discover the source of the damage to their home until 2007, so the claims are within the six-year statute of limitations on actions for injury to property other than personal property.
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Opinions Aug. 6, 2012

August 6, 2012
Indiana Court of Appeals
Donald Gregory Huls v. State of Indiana

64A04-1110-CR-552
Criminal. Affirms convictions of criminal recklessness, one as a Class D felony and one as a Class C felony. Affirms denial of motion for mistrial because the prosecutor’s isolated comment did not have a probable persuasive effect on the jury and did not place Huls in grave peril. His proposed jury instructions incorrectly stated the law on self-defense or the evidence did not support giving them.
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Opinions Aug. 3, 2012

August 3, 2012
7th Circuit Court of Appeals
BKCAP, LLC, GRAYCAP, LLC, AND SWCAP, LLC v. Captec Franchise Trust 2000-1
11-2928, 11-3378
U.S. District Court, Northern District of Indiana, South Bend Division. Magistrate Judge Roger B. Cosbey.
Civil. Affirms ruling in favor of the borrowers’ interpretation of the prepayment premium requirements in 12 loans involving restaurants and award of prejudgment interest to the borrowers. The borrowers’ position was supported by the evidence presented at trial, and the lender is not entitled to attorney fees.
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Opinions Aug. 2, 2012

August 2, 2012
Indiana Court of Appeals
N.B. v. State of Indiana
55A01-1111-JV-574
Juvenile. Affirms determination that N.B. committed the delinquent act of reckless homicide, a Class C felony if committed by an adult. N.B. contended that the juvenile court abused its discretion in admitting his statement to the investigating officer at the evidentiary hearing. Finds the procedural safeguards set forth in the juvenile waiver statute were met.
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Opinions Aug. 1, 2012

August 1, 2012
Indiana Court of Appeals
Justin A. Staton v. State of Indiana (NFP)
48A02-1112-CR-1192
Criminal. Affirms revocation of probation.
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Opinions July 31, 2012

July 31, 2012
7th Circuit Court of Appeals
Carol Aschermann v. Aetna Life Insurance Company, et al.
12-1230
U.S. District Court, Southern District of Indiana, Indianapolis Division. Judge Larry J. McKinney.
Civil. Affirms the District Court judgment in favor of the insurers, in which an insurer stopped paying a worker’s disability benefits claim, holding that the decision was not arbitrary or capricious.
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Opinions July 30, 2012

July 30, 2012
7th Circuit Court of Appeals
Winforge, Inc., et al., v. Coachmen Industries, Inc., et al.
10-3178
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge Sarah Evans Barker.
Civil. Affirms trial court judgment for defendants, agreeing that the parties had never entered into a final, enforceable contract.
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Opinions July 27, 201

July 27, 2012
7th Circuit Court of Appeals
Leonard Lapsley, et al. v. Xtek Inc.
11-3313
U.S. District Court, Northern District of Indiana, Hammond Division. Judge Joseph S. Van Bokkelen.
Civil. Affirms denial of Xtek’s Daubert motion that sought to bar Dr. Gary Hutter from offering his expert opinions, which were essential to Lapsley’s case that a design defect in Xtek’s equipment was the cause of his accident. In this case, the District Court’s stated analysis of the proposed testimony was brief, but it was also directly to the point and was sufficient to trigger deferential review on appeal. The District Court did not misapply Daubert.
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Opinions July 26, 2012

July 26, 2012
Indiana Supreme Court
Michael J. Lock v. State of Indiana
35S04-1110-CR-622
Criminal. Affirms Lock’s conviction and sentence for Class D felony operating a motor vehicle as a habitual traffic violator and the revocation of his driving privileges for life. I.C. 9-30-10-16 is not unconstitutionally vague and based on the stipulation that Lock’s Zuma was traveling 43 MPH, a reasonable fact-finder could find beyond a reasonable doubt that the Zuma had a maximum design speed in excess of 25 MPH. Justice Rucker dissents.
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Opinions July 25, 2012

July 25, 2012
Indiana Supreme Court
Kenneth Dwayne Vaughn v. State of Indiana
45S05-1112-CR-684
Criminal. Affirms decision not to grant a mistrial. Vaughn did not suffer actual harm from the bailiff restraining him by covering Vaughn’s mouth in front of the jury so he would stop taking.
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Opinions July 24, 2012

July 24, 2012
7th Circuit Court of Appeals
Jeffrey D. Kirkland v. United States of America
11-2507
U.S. District Court, Northern District of Indiana, South Bend Division, Judge Jon E. DeGuilio.
Civil. Reverses District Court’s conclusion that an enhancement of Kirkland’s sentence under the Armed Criminal Career Act was still appropriate based on his remaining three convictions for violent felonies. Court may only consider Shepard-approved sources in determining whether prior offenses occurred on separate occasions under 18 U.S.C. Section 924(e)(1). Based on the record, the appellate court can’t conclude that Kirkland’s robbery and burglary offenses – which were on the same day – occurred on separate occasions. Remands for resentencing.
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Opinions July 23, 2012

July 23, 2012
7th Circuit Court of Appeals
Mark McCleskey, trustee, et al. v. DLF Construction Inc., an Indiana corporation
11-1826
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge William T. Lawrence.
Civil. Affirms finding that the construction company, as employer, had to contribute to the funds for all hours worked by members of the union, not just bargaining unit work. The collective bargaining agreements are clear that DLF is required to make contributions to the pension and health and welfare funds for each hour worked by a covered employee.
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Opinions July 20, 2012

July 20, 2012
7th Circuit Court of Appeals
Bradley M. Shideler v. Michael J. Astrue, commissioner of Social Security
11-3284
U.S. District Court, Northern District of Indiana, South Bend Division, Judge Robert L.
Miller Jr.
Civil. Affirms denial of application for Social Security Disability Insurance benefits. The administrative law judge adequately evaluated Shideler’s credibility. Whatever his current condition is, the ALJ’s decision finding that he was not disabled as of March 31, 2000, is supported by substantial evidence.
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Opinions July 19, 2012

July 19, 2012
Indiana Court of Appeals
Bobby A. Harlan v. State of Indiana
84A01-1110-CR-474
Criminal. Affirms sentence imposed for two convictions of Class B felony child molesting and order that Harlan register as a sexually violent predator. The order requiring Harlan register as a SVP does not violate the ex post facto clause of the Indiana Constitution, the trial court did not abuse its discretion in the course of identifying aggravating and mitigating factors at sentencing, and his sentence is reasonable.
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Opinions July 18, 2012

July 18, 2012
Indiana Court of Appeals
Annette Pittman v. State of Indiana
49A02-1112-CR-1132
Criminal. Affirms conviction of Class B misdemeanor public intoxication. I.C. 12-23-15-2 did not require the arresting officer, or other law enforcement personnel elsewhere, to perform an evaluation so thorough as to eliminate all other possible causes for each of the symptoms of alcoholic intoxication that Pittman exhibited.
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Opinions July 17, 2012

July 17, 2012
Indiana Court of Appeals
Darrell Larue Brown v. State of Indiana
10A04-1109-CR-551
Criminal. Affirms Brown’s sentence following guilty plea to two counts of Class B felony child molesting. Brown waived his right to appeal.
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Opinions July 16, 2012

July 16, 2012
Indiana Court of Appeals
M & M Investment Group, LLC v. Ahlemeyer Farms, Inc. and Monroe Bank
03A04-1112-CC-639
Civil collection. Affirms trial court order denying M&M’s petition for a tax deed for property of which Monroe Bank was the mortgagee, holding that the court properly denied the petition. Finds that the Indiana pre-tax-sale notice statute violates the Due Process Clause of the 14th Amendment.
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Opinions July 13, 2012

July 13, 2012
Indiana Court of Appeals
John W. Schoettmer and Karen Schoettmer v. Jolene C. Wright and South Central Community Action Program, Inc.
49A04-1108-CT-406
Civil tort. Affirms summary judgment in favor of Wright and South Central Community Action Program Inc., finding that the plaintiffs did not timely file notice as governed by the Indiana Tort Claims Act.
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Opinions July 12, 2012

July 12, 2012
7th Circuit Court of Appeals
Carlene M. Craig, et al. v. FedEx Ground Package System Inc.
10-3115
U.S. District Court, Northern District of Indiana, South Bend Division, Judge Robert L. Miller Jr.
Multidistrict litigation. Certifies two questions to the Kansas Supreme Court in a suit that was based on the Employee Retirement Income Security act and Kansas law regarding whether FedEx drivers are employees or independent contractors. Craig is the “lead” case in a nationwide class action.
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Opinions July 11, 2012

July 11, 2012
7th Circuit Court of Appeals
Michael Dean Overstreet v. Bill Wilson, superintendent, Indiana State Prison
11-2276
U.S. District Court, Northern District of Indiana, South Bend Division, Chief Judge Philip P. Simon.
Civil. Finds Overstreet, who is sentenced to death, did not receive constitutionally ineffective assistance of counsel relating to the handling of an alleged plea bargain, the handling of spectators in the courtroom, and relating to the sentencing proceeding. Judge Wood dissents regarding the attorneys’ handling of the sentencing proceeding and would grant the petition for writ of habeas corpus limited to the sentence imposed.
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Opinions July 10, 2012

July 10, 2012
Indiana Court of Appeals
In the Matter of the Adoption of N.W.R.; M.R. v. R.B. and R.B., and Indiana Dept. of Child Services
36A01-1109-AD-407
Adoption. Reverses the trial court’s grant of a petition to adopt to foster parents R.B. and R.B., and remands to the trial court with instructions to reconsider evidence after DCS completes investigation of aunt M.R. as a potential adoptive replacement. The court held that the trial court erred in denying DCS’ motion to withdraw consent for the petition after discovering it failed to conduct a complete adoptive placement investigation.
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Opinions July 9, 2012

July 9, 2012
Indiana Court of Appeals
Derrick Baker v. State of Indiana (NFP)
48A02-1110-CR-929
Criminal. Affirms trial court conviction of dealing cocaine as a Class B felony.

 
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Opinions July 6, 2012

July 6, 2012
7th Circuit Court of Appeals
U.S. v. Justin Cephus, Jovan Stewart, and Stanton L. Cephus
10-3838, 10-3840, 11-1098
Criminal. Affirms in a case involving conspiracy to entice underage girls to engage in prostitution and transport them across state lines the life sentences without parole of multiple convictions for Justin and Stanton Cephus. The order remands to the trial court to enable the judge to reconcile a discrepancy in Stewart’s sentence of 324 months in federal prison. The judge said Stewart’s sentences were to be served consecutively; the written order indicates the sentences are concurrent.
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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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