Opinions

Opinions May 20, 2015

May 20, 2015
7th Circuit Court of Appeals
University of Notre Dame v. Sylvia Mathews Burwell, Secretary of U.S. Department of Health & Human Services, et al., and Jane Doe 3
13-3853
U.S. District Court, Northern District of Indiana, Chief Judge Philip P. Simon.
Civil. Affirms denial of preliminary relief requested by Notre Dame against having to comply with the Affordable Care Act’s contraception mandate pending a trial. Notre Dame has not yet established its right to the injunctive relief it is seeking before trial and majority believes a trial on the merits is necessary. Judge Hamilton concurs in separate opinion; Judge Flaum dissents in separate opinion.
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Opinions May 19, 2015

May 19, 2015
Indiana Supreme Court
In the Matter of: Thomas R. Philpot
45S00-1304-DI-224
Attorney discipline. Suspends Thomas Philpot from the practice of law for four years without automatic reinstatement. Finds he violated the Indiana Rules of Professional Conduct by committing crimes that reflect adversely on his honesty, trustworthiness and fitness as a lawyer.
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Opinions May 18, 2015

May 18, 2015
Indiana Court of Appeals
Gary P. Byers v. Robert E. Moredock and Rhoda S. Moredock
34A04-1412-CT-560
Civil tort. Affirms summary judgment in favor of the Moredocks and against Byers. Finds the Moredocks as owners of the property and landlords did not have a duty to ensure their tenant’s dog was properly restrained.
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Opinions May 15, 2015

May 15, 2015
Indiana Tax Court
Lee and Sally Peters v. Lisa Garoffolo, Boone County Assessor, and the Indiana Board of Tax Review
49T10-1207-TA-42
Tax. Affirms the Indiana Board of Tax Review’s 2010 assessment of a Zionsville office building owned by Lee and Sally Peters. The Indiana Board of Tax Review did no err in upholding the 2010 real property assessment.
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Opinions May 14, 2015

May 14, 2015
Indiana Supreme Court
The Board of Commissioners of the County of Jefferson v. Teton Corporation, Innovative Roofing Solutions, Inc., Gutapfel Roofing, Inc., and Daniel L. Gutapfel
72S04-1410-CT-642
Civil tort. Affirms summary judgment in favor of the contractors on the county’s subrogation claim to recover damages caused to the courthouse outside the scope of the renovation work. The plain meaning of the contract defines the scope of the AIA contract waiver based on the extent and source of coverage, not the nature of the property damaged. Agrees with the majority of jurisdictions that have applied this plain meaning to bar recovery for all damages covered by the same property insurance policy used to cover construction-related damages – commonly referred to as the “any insurance” approach. Because contractors have shown that the property owner’s insurance covered all damages, the subrogation waiver applies to bar the property owner’s claim.
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Opinions May 13, 2015

May 13, 2015
Indiana Supreme Court
Daniel Lee Pierce v. State of Indiana
78S05-1407-CR-460
Criminal. Affirms Pierce’s convictions for molesting his three young granddaughters. Finds his abuse of the girls in his care was sufficiently connected, so he is not entitled to new and separate trials. Remands for the purpose of resentencing on one count of Class A felony child molesting because the trial court erred by suspending six years of Pierce’s 30-year sentence for that count. Justices Robert Rucker and Brent Dickson concur in a separate opinion.
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Opinions May 12, 2015

May 12, 2015
7th Circuit Court of Appeals
United States of America v. Michael A. Knoll and Dax G. Shephard; Appeal of: Bob Henson
14-3027
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge Tanya Walton Pratt.
Criminal. Affirms summary judgment in favor of the government on Henson’s claim he had a legal right, title or interest in the Indianapolis or Fort Wayne properties forfeited to the government after Outlaw members Knoll and Shephard pleaded guilty to racketeering charges. But Henson did not present evidence showing he had a legal right, title or interest, and his statement indicated his interest did not begin until after the raid occurred in 2012.
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Opinions May 11, 2015

May 11, 2015
Indiana Court of Appeals
Mary K. Davis v. State of Indiana
20A03-1411-PC-408
Post conviction. Reverses denial of petition for post-conviction relief. Orders Davis immediately released pending resolution of this appeal. The post-conviction court’s findings and conclusions were contrary to law. The state’s notice of violation was filed on the day Davis’ probation ended such that there was no period of probation to be tolled, which means the trial court could not continue her terms of probation pursuant to Ind. Code § 35-38-2-3(c).
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Opinions May 8, 2015

May 8, 2015
Indiana Court of Appeals
Jay R. Thompson v. State of Indiana
31A01-1408-PC-350
Post conviction. Affirms grant of the state’s motion to dismiss Thompson’s post-conviction relief petition pursuant to the doctrine of laches. The state was prejudiced by his 22-year delay in prosecuting his PCR petition.
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Opinions May 7, 2015

May 7, 2015
Jonathan Grott, Sr. v. State of Indiana
64A04-1408-CR-395
Criminal. Affirms conviction of Class D felony auto theft. There is sufficient evidence to sustain the conviction, which stems from Grott's failure to return a rental car on a specific date.
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Opinions May 5, 2015

May 5, 2015
7th Circuit Court of Appeals
United States of America v. Christopher Boultinghouse
14-2764
Chief Judge Richard Young, U.S. District Court for the Southern District of Indiana, Evansville Division
Criminal. Affirms revocation of Boultinghouse’s supervised release. Finds Boultinghouse knowingly and intelligently made his decision to waive his right to counsel. Vacates sentence and remands for resentencing. Rules the District Court erred by not explaining the reasons behind its decision to impose a 24-month term of imprisonment.
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Website domain dispute pulled from justices’ calendar

May 5, 2015
Dave Stafford
A dispute over a website address that had been scheduled for oral arguments Wednesday before the Indiana Supreme Court has been settled, an attorney involved in the case said.
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Opinions May 4, 2015

May 4, 2015
7th Circuit Court of Appeals
Bruce Carneil Webster v. Charles A. Daniels
14-1049
Judge William T. Lawrence, District Court for the Southern District of Indiana, Terre Haute Division.
Criminal. In a 6-5 decision, En banc review reverses 7th Circuit panel judgment that new evidence can never satisfy the habeas corpus standard of 28 U.S.C. § 2255(e). Remands for proceedings allowing Webster to present new evidence that may demonstrate categorical and constitutional ineligibility for the death penalty. Circuit Judge Frank Easterbrook dissented, arguing Webster’s new evidence did not meet the “clear and convincing” language required for relief. Easterbrook was joined in dissent by Circuit Judges William J. Bauer, Michael S. Kanne, Diane S. Sykes and John Tinder.
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Court OKs admission of tweets, reverses criminal gang activity conviction

April 30, 2015
Jennifer Nelson
In a case of first impression regarding the authentication of social media posts, the Indiana Court of Appeals held that the testimony from the defendant's girlfriend that the Twitter account belonged to her boyfriend, as well as content from that account, sufficiently showed the defendant was the author of its tweets.
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Opinions April 30, 2015

April 30, 2015
Indiana Court of Appeals
Bruce Angelo Evans v. State of Indiana
48A02-1407-CR-496
Criminal. Affirms conviction of Class B felony dealing in a narcotic drug and pleading to being a habitual substance offender. Evans waived his challenge regarding the instruction on jury unanimity by failing to object to the jury instruction or offer one of his own, and any error does not rise to the level of fundamental error. Affirms admission into evidence a large amount of cash found on Evans when he was searched by law enforcement officers after the controlled drug buy.
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Man’s conviction from controlled drug buy upheld

April 30, 2015
Jennifer Nelson
An Anderson man who was criminally convicted for selling drugs to a confidential informant waived both his arguments on appeal, the Indiana Court of Appeals ruled Thursday. And, the judges found no fundamental error in a jury instruction given or the admission of cash found on the defendant by police.
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Opinions April 29, 2015

April 29, 2015
 Indiana Supreme Court
James Bogner v. Teresa Bogner
45S04-1501-DR-23
Domestic relation. Affirms modification of child support that deviated from what was found under the child support guidelines of $59 a week paid by the father to $105 per week paid by the father, in addition to order that mother could claim the child each year on her taxes. The trial court did not err in determining that given the parents’ circumstances, the guideline amount was unjust and unreasonable. Finds father waived his challenge to the form of the summary proceeding when he failed to make a contemporaneous objection to that procedure. 
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Opinions April 28, 2015

April 28, 2015

Indiana Court of Appeals
Dawn Warrick and Nathan Parrish v. Steve and Mitzi Stewart
92A03-1407-CC-257
Civil collection. Affirms grant of Steve Stewart’s motion to set aside the jury’s verdict and orders a new trial on his negligence claim against the Parrishes. The trial court did not abuse its discretion when it weighed the evidence presented regarding Stewart’s speed and concluding he was not speeding. There was also ample evidence represented that the Warricks negligently failed to restrain the dog that Stewart hit, which caused his accident.

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Opinions April 27, 2015

April 27, 2015
Indiana Court of Appeals
Adegoke Adetokunbo aka Robert Adesanoye, and Grace Itaniyi v. State of Indiana
49A02-1407-CR-511
Criminal. Affirms Adetokunbo’s convictions of Class A misdemeanor resisting law enforcement and Class B misdemeanor battery, and affirms Itaniyi’s convictions of Class A misdemeanor resisting law enforcement and Class B misdemeanor disorderly conduct. Reverses Itaniyi’s conviction of Class B misdemeanor battery based on insufficient evidence and remands with instructions to vacate that conviction.
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Opinions April 24, 2015

April 24, 2015
Tax. Affirms the Indiana Department of Local Government Finance did not err in denying the Clark County Board of Commissioners' request to increase the county's Cumulative Capital Development Fund tax rate for the 2012 budget year. The DLGF's consideration of the board's purpose for requesting an increase to the CCDF's tax rate was proper, and neither I.C. 6-1.1-41 nor 36-9-14.5-2 authorize an increase to the CCDF tax rate for the purposes Clark County intended.
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Opinions April 23, 2015

April 23, 2015
J.B. v. State of Indiana 
49A02-1409-JV-688
Juvenile. Affirms determination that J.B. committed what would be Class A misdemeanor dangerous possession of a firearm if committed by an adult. There were no federal or state constitutional violations by admitting evidence obtained during J.B.’s encounter with a police officer.  
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Opinions April 22, 2015

April 22, 2015
Indiana Court of Appeals
William I. Babchuk, M.D., P.C., d/b/a Babchuk Imaging, P.C., and William I. Babchuk v. Indiana University Health Tipton Hospital, Inc., d/b/a Indiana University Health Tipton Hospital
80A04-1409-PL-447
Civil plenary. Reverses order dismissing Babchuk’s complaint of breach of contract for failure to prosecute under Trial Rule 41(E).  While the trial court would have had discretion to dismiss Babchuk’s case for failure to prosecute had a timely motion been filed, the hospital did not file its motion to dismiss before Babchuk had resumed prosecution of his case. Remands for further proceedings.
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Opinions April 21, 2015

April 21, 2015
7th Circuit Court of Appeals
United States of America v. Kenneth Sandidge
14-1492
U.S. District Court, Northern District of Indiana, Hammond Division, Judge Rudy Lozano.
Criminal. Affirms four-level enhancement for conviction of felon in possession of a firearm because it was in connection with another felony, and denial of three-level reduction for accepting responsibility. Remands to the trial court to vacate conditions of supervised release, which in accord with recent 7th Circuit holdings must be imposed to fit the particular circumstances of the defendant being sentenced.
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Opinions April 20, 2015

April 20, 2015
Indiana Court of Appeals
Stephen F. Smith v. Foegley Landscape, Inc.
71A03-1405-SC-169
Small Claims. Affirms judgment in favor of Foegley Landscape but reverses $1,500 award for attorney fees. Finds the small claims court did not have any documentation to properly evaluate the reasonableness of the fees. Remands to the small claims court to hold a hearing and determine the reasonable attorney fees.
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Opinions April 17, 2015

April 17, 2015
Indiana Court of Appeals
Angelique Lockett and Lanetra Lockett v. Planned Parenthood of Indiana, Inc., and Cathy McGee
45A05-1407-CT-340
Civil tort. Affirms summary judgment in favor of Planned Parenthood on a malpractice claim, but remands to the trial court to correct the order of judgment for defendants to show that McGee, who provided identification to a 17-year-old to obtain an abortion without parental consent, is not dismissed as a defendant.
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  1. I'm going to court the beginning of Oct. 2015 to establish visitation and request my daughters visits while she is in jail. I raised my grandchild for the first two and half years. She was born out of wedlock and the father and his adopted mother wantwd her aborted, they went as far as sueing my daughter for abortion money back 5mo. After my grandchild was born. Now because of depression and drug abuse my daughter lost custody 2 and a half years ago. Everyting went wrong in court when i went for custody my lawyer was thrown out and a replacment could only stay 45 min. The judge would not allow a postponement. So the father won. Now he is aleinating me and my daughter. No matter the amount of time spent getting help for my daughter and her doing better he runs her in the ground to the point of suicide because he wants her to be in a relationship with him. It is a sick game of using my grandchild as a pawn to make my daughter suffer for not wanting to be with him. I became the intervener in the case when my daughter first got into trouble. Because of this they gave me her visitation. Im hoping to get it again there is questions of abuse on his part and I want to make sure my grandchild is doing alright. I really dont understand how the parents have rights to walk in and do whatever they want when the refuse to stand up and raise the child at first . Why should it take two and a half years to decide you want to raise your child.The father used me so he could finish college get a job and stop paying support by getting custody. Support he was paying my daughter that I never saw.

  2. Pence said when he ordered the investigation that Indiana residents should be troubled by the allegations after the video went viral. Planned Parenthood has asked the government s top health scientists at the National Institutes of Health to convene a panel of independent experts to study the issues surrounding the little-known branch of medicine.

  3. State Farm is sad and filled with woe Edward Rust is no longer CEO He had knowledge, but wasn’t in the know The Board said it was time for him to go All American Girl starred Margaret Cho The Miami Heat coach is nicknamed Spo I hate to paddle but don’t like to row Edward Rust is no longer CEO The Board said it was time for him to go The word souffler is French for blow I love the rain but dislike the snow Ten tosses for a nickel or a penny a throw State Farm is sad and filled with woe Edward Rust is no longer CEO Bambi’s mom was a fawn who became a doe You can’t line up if you don’t get in a row My car isn’t running, “Give me a tow” He had knowledge but wasn’t in the know The Board said it was time for him to go Plant a seed and water it to make it grow Phases of the tide are ebb and flow If you head isn’t hairy you don’t have a fro You can buff your bald head to make it glow State Farm is sad and filled with woe Edward Rust is no longer CEO I like Mike Tyson more than Riddick Bowe A mug of coffee is a cup of joe Call me brother, don’t call me bro When I sing scat I sound like Al Jarreau State Farm is sad and filled with woe The Board said it was time for him to go A former Tigers pitcher was Lerrin LaGrow Ursula Andress was a Bond girl in Dr. No Brian Benben is married to Madeline Stowe Betsy Ross couldn’t knit but she sure could sew He had knowledge but wasn’t in the know Edward Rust is no longer CEO Grand Funk toured with David Allan Coe I said to Shoeless Joe, “Say it ain’t so” Brandon Lee died during the filming of The Crow In 1992 I didn’t vote for Ross Perot State Farm is sad and filled with woe The Board said it was time for him to go A hare is fast and a tortoise is slow The overhead compartment is for luggage to stow Beware from above but look out below I’m gaining momentum, I’ve got big mo He had knowledge but wasn’t in the know Edward Rust is no longer CEO I’ve travelled far but have miles to go My insurance company thinks I’m their ho I’m not their friend but I am their foe Robin Hood had arrows, a quiver and a bow State Farm has a lame duck CEO He had knowledge, but wasn’t in the know The Board said it was time for him to go State Farm is sad and filled with woe

  4. The ADA acts as a tax upon all for the benefit of a few. And, most importantly, the many have no individual say in whether they pay the tax. Those with handicaps suffered in military service should get a pass, but those who are handicapped by accident or birth do NOT deserve that pass. The drivel about "equal access" is spurious because the handicapped HAVE equal access, they just can't effectively use it. That is their problem, not society's. The burden to remediate should be that of those who seek the benefit of some social, constructional, or dimensional change, NOT society generally. Everybody wants to socialize the costs and concentrate the benefits of government intrusion so that they benefit and largely avoid the costs. This simply maintains the constant push to the slop trough, and explains, in part, why the nation is 20 trillion dollars in the hole.

  5. Hey 2 psychs is never enough, since it is statistically unlikely that three will ever agree on anything! New study admits this pseudo science is about as scientifically valid as astrology ... done by via fortune cookie ....John Ioannidis, professor of health research and policy at Stanford University, said the study was impressive and that its results had been eagerly awaited by the scientific community. “Sadly, the picture it paints - a 64% failure rate even among papers published in the best journals in the field - is not very nice about the current status of psychological science in general, and for fields like social psychology it is just devastating,” he said. http://www.theguardian.com/science/2015/aug/27/study-delivers-bleak-verdict-on-validity-of-psychology-experiment-results

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