Opinions

Opinions Sept. 5, 2013

September 5, 2013

Opinions, Sept. 5, 2013

Indiana Court of Appeals
Ezekier Breaziel v. State of Indiana (NFP)
49A02-1209-CR-731
Criminal. Dismisses Breaziel’s interlocutory appeal of the denial of his motion to dismiss the charges against. Concludes sua sponte the COA lacks authority under the appellate rules to accept jurisdiction of Breaziel’s appeal.

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Opinions Sept. 4, 2013

September 4, 2013
Indiana Court of Appeals
Joshua Basey v. State of Indiana (NFP)
48A01-1301-CR-40
Criminal. Affirms conviction of Class D felony battery.
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Opinions Sept. 3, 2013

September 3, 2013
7th Circuit Court of Appeals
USA v. Farshad Ghiassi
12-3596
Criminal. Affirms 70-month sentence for Ghiassi’s guilty plea to being a felon in possession of a firearm, in violation of 18 U.S. Code 922(g)(1). Finds the District Court was uniquely and well-situated to assess the credibility of Ghiassi’s co-defendant and her statements that she purchased eight firearms on his behalf. Also rejects Ghiassi’s alternative argument that the District Court deprived him of due process. Rules Ghiassi knew the court was going to rely on his co-defendant’s statements and he had opportunity to challenge those statements.
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Opinions August 27, 2013

August 27, 2013
Indiana Supreme Court
John W. Schoettmer & Karen Schoettmer v. Jolene C. Wright & South Central Community Action Program, Inc.
49S04-1210-CT-607
Civil Tort. Reverses grant of summary judgment in defendants favor and remands for further proceedings. Rules even though the Schoettmers filed their law suit against South Central well past the Indiana Tort Claims Act’s 180-day deadline, they should be allowed to present proof of estoppel to the trial court. Finds South Central never told John Schoettmer it was covered by the Act and that South Central’s insurer did not make a settlement offer until nearly three months after the ITCA deadline.
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Opinions August 26, 2013

August 26, 2013
IL Staff
Indiana Court of Appeals

Stephanie Murry v. State of Indiana (NFP)
49A02-1301-CR-39
Criminal. Affirms revocation of placement in Marion County Community Corrections
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Opinions August 23, 2013

August 23, 2013
7th Circuit Court of Appeals
Larry Butler et al. v. Sears, Roebuck and Co.
11-8029, 12-8030
Civil. On remand from the U.S. Supreme Court, reinstates class-action certification for two claims regarding front-loading Kenmore washing machines sold by Sears: that design defects created odor-producing mold and cause the machine to stop at inopportune times. Applying the SCOTUS holding in Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013), the court held that a single common issue of liability ran through class action claims: whether the washers were defective.
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Opinions Aug. 22, 2013

August 22, 2013
Indiana Court of Appeals
Roger A. Buchanan and Susan Buchanan v. HSBC Mortgage Services, Inc.
39A01-1211-MF-515
Mortgage foreclosure. Affirms trial court grant of summary judgment in favor of HSBC Mortgage Services, holding that even if a mortgage was not properly acknowledged, the Buchanans don’t deny that they executed a mortgage and note when they purchased their home, on which they stopped making mortgage payments in 2007. The Buchanans’ arguments therefore are without merit.
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Opinions, Aug. 21, 2013

August 21, 2013
Opinions – Aug. 21, 2013
Indiana Court of Appeals

Rodney Melton v. State of Indiana
49A02-1212-CR-1008
Criminal. Affirms conviction of Class C felony child molesting and Class D felony dissemination of matter harmful to minors, rejecting an argument that the dissemination statute requires a “performance” under that law be public. The court also found Melton’s 11-year aggregate sentence was not inappropriate in light of his character and the nature of the offense.
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Mom loses bid to bar DCS child interviews after clean home check

August 21, 2013
Dave Stafford
A mother who challenged a court order granting the Department of Child Services’ petitions to interview her minor children lost her appeal Wednesday, despite her argument that a DCS inspection of her home and her screening found no evidence of drug abuse that had been alleged in a complaint.
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Opinions Aug. 20, 2013

August 20, 2013
Indiana Court of Appeals
Carl J. Brandenburg v. State of Indiana
40A04-1301-CR-23
Criminal. Affirms revocation of probation for failure to pay child support after conviction of a Class C felony charge of non-support of a dependent child, but remands to the trial court for a recalculation of the arrearage. The court found that Brandenburg’s daughter had turned 21 before he was charged, and the state acknowledged uncertainty about the ruling that the arrearage was $17,795.05, rather than an amount closer to $10,000, as Brandenburg claims.
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Opinions Aug. 19, 2013

August 19, 2013
Indiana Court of Appeals
Derik A. Blocker and Tammi Blocker v. U.S. Bank National Association as Trustee for the Certificateholders Citigroup Mortgage Loan Trust Inc. Asset-Backed Pass-Through Certificate Series 2007-AHL3
45A03-1211-MF-479
Mortgage foreclosure. Affirms trial court grant of summary judgment to U.S. Bank, holding that no issues of material fact exist, and discards arguments that appeared to stem from “Redemptionist” movement theory claiming that debts could be settled through claims made to the United States Treasury. 
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Opinions Aug. 15, 2013

August 15, 2013
7th Circuit Court of Appeals
United States of America v. James Simon
11-1837
Criminal. Affirms jury conviction from the U.S. District Court, Northern District of Indiana, on charges of filing false income tax returns, failing to file reports of foreign bank accounts, mail fraud and financial aid fraud. There was a legal basis for his convictions, and the District Court did not err in limiting defense evidence regarding some of the charges or in rulings on jury instruction.
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Opinions August 13, 2013

August 13, 2013
Opinions Aug. 13, 2013

Indiana Court of Appeals
Rollett Family Farms, LLC. v. Area Plan Commission of Evansville-Vanderburgh County, Vanderburgh County Board of Commissioners, and Vanderburgh County Recorder

82A01-1301-PL-43
Civil plenary. Affirms trial court judgment denying claims that “lots of record” for boundaries of river camps could be established based on the testimony of longtime residents. The lack of official documentation defeats the plain meaning of the words “of record,” requiring some sort of official documentation in the public record, the panel ruled.
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Opinions August 12, 2013

August 12, 2013
7th Circuit Court of Appeals
Thomas H. Hurlow v. United States of America
12-1374
Criminal. Reverses the district court’s denial of Hurlow’s 2255 petition and remands for further proceedings. Rules Hurlow’s allegation - he would not have entered into the plea agreement had his counsel informed him of his potentially meritorious Fourth Amendment claim - was sufficient to overcome the wavier in his plea agreement not to contest his conviction or sentence under 28 U.S.C. 2255.
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Opinions Aug. 9, 2013

August 9, 2013
7th Circuit Court of Appeals
Paul Hester v. Indiana State Department of Health
12-3207
Civil. Affirms District Court ruling granting summary judgment in favor of the Department of Health. The panel held that there was evidence that Hester was fired for cause, and that Hester failed to produce evidence showing age, race or gender discrimination supporting his claim that his firing violated the Age Discrimination in Employment Act, 29 U.S.C. § 621, or Title VII of the Civil Rights Act, 42 U.S.C. §§ 2000e-2000e17.
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Opinions Aug. 8, 2013

August 8, 2013
Indiana Supreme Court
Mary Alice Manley, and Gary Manley v. Ryan J. Sherer, M.D., and Sherer Family Medicine, P.C.
59S01-1205-PL-249
Civil plenary/medical malpractice. Reverses grant of summary judgment in favor of defendants and remands for further proceedings, finding issues of material facts exist as to when plaintiffs knew of alleged malpractice or learned of the facts that should lead to the discovery of malpractice and resulting injury. Summary judgment should have been denied as to the defendants’ claim of absence of an element of causation necessary to establish liability.
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Opinions Aug. 7, 2013

August 7, 2013
Indiana Court of Appeals
Westminster Presbyterian Church of Muncie, an Indiana Non-Profit Corporation v. Yonghong Cheng and Hongjun Niu, Husband and Wife, as parents of Matthew Cheng, deceased
18A02-1210-CT-791
Civil tort. Affirms summary judgment in favor of Westminster in regard to an intentional infliction of emotional distress claim. Reverses denial of summary judgment on wrongful death and invasion-of-privacy claims and remands with instructions to grant summary judgment in favor of Westminster. Finds although the church recommended the babysitter, in whose care Matthew Cheng died, it did not owe a duty to the Cheng family as a matter of law. Also, rules the church’s publicizing the death did not invade on the Chengs’ privacy because the church did not reap any commercial value from doing so.
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Opinions Aug. 5, 2013

August 5, 2013
Brad Kroft v. State of Indiana
49A04-1211-CR-593
Criminal. Reverses and remands on interlocutory appeal denial of a motion to suppress, holding that a state trooper who stopped a motorist because a working tail lamp had a dime-sized hole that emitted white light did not have reasonable suspicion to initiate a traffic stop that resulted in two charges: Class A misdemeanor operating a vehicle with an alcohol concentration equivalent of 0.15 or more, and Class C misdemeanor operating a vehicle while intoxicated.
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Opinions Aug. 1, 2013

August 1, 2013
Luxury Townhomes, LLC/LP XXIV, LLC, et al. v. McKinley Properties, Inc. and Kenneth Polsinelli
49A05-1210-MF-514
Mortgage foreclosure. Affirms denial of Luxury’s motion to correct error. Rules that since the trial court already held a hearing, accepted the receiver’s final report and discharged the receiver, the doctrine of res judicata precluded Luxury from filing a separate motion against the receiver.
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Opinions July 31, 2013

July 31, 2013
7th Circuit Court of Appeals
Sikiru Adeyeye v. Heartland Sweeteners, LLC
12-3820
Civil/Religious discrimination. Reverses summary judgment in favor of Heartland and remands to the District Court for proceedings, holding that a material issue of fact exists as to whether Sikiru Adeyeye’s rights under Title VII were violated when he was fired after taking time off work to attend his father’s burial rights in Nigeria. 
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Opinions July 30, 2013

July 30, 2013
Indiana Court of Appeals
In Re the Adoption of: P.A.H., f/k/a P..V., Minor Child, B.D. and L.H.C., v. J.H.
79A02-1302-AD-183
Adoption. Reverses trial court’s order granting post-adoption visitation to P.H.’s biological uncle, J.H. Finds the lower court lacked authority to grant post-adoption visitation rights to J.H. since he is not within any statutory category of persons entitled to visitation rights.
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Opinions July 29, 2013

July 29, 2013
Indiana Court of Appeals
Robert L. Murray v. State of Indiana (NFP)
45A05-1205-PC-274
Post conviction. Affirms COA’s memorandum decision. Grants Murray’s petition for a rehearing to address the two omitted issues regarding false testimony. Concludes the testimony was not false and the court’s omitted reference to Murray’s final motion to amend his petition is immaterial and, therefore, not a basis for relief.
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Opinions July 26, 2013

July 26, 2013
Indiana Court of Appeals
Jermaine Marcel Nash v. State of Indiana (NFP)
45A05-1210-CR-553
Criminal. Reverses conviction of criminal confinement, a Class C felony, and remands case to the trial court to vacate the conviction and amend Nash’s sentence accordingly. Rules Nash’s convictions for attempted rape and criminal confinement violate the principles of double jeopardy.
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Opinions July 25, 2013

July 25, 2013
7th Circuit Court of Appeals
United States of America v. Jama Mire and Hassan Rafle
12-2792, 12-2793
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge William T. Lawrence.
Criminal. Affirms both men’s convictions of one count of conspiracy to possess with intent to distribute cathinone; affirms Mire’s additional convictions of knowingly using or maintaining a place for the purpose of distributing and using cathinone; and possession with intent to distribute a mixture or substance containing cathinone. Rejects claims that that their due process rights were violated because they were not given fair warning that the possession of “khat” may be illegal.
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Opinions July 23, 2013

July 23, 2013
Indiana Court of Appeals
Gared Holdings, LLC v. Best Bolt Products, Inc.
49A02-1210-PL-811
Civil plenary.  Affirms the trial court’s judgment on Gared’s claims of breach of contract and breach of the implied warranty of fitness for a particular purpose as those claims are supported by the evidence. The trial court erred in ruling that Best Bolt was not a merchant. Remands for the trial court to determine whether Best Bolt breached the implied warranty of merchantability, and if so, whether that alters the result of Best Bolt’s counterclaim. Chief Judge Robb concurs in separate opinion and dissents in part.
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  1. Yes diversity is so very important. With justice Rucker off ... the court is too white. Still too male. No Hispanic justice. No LGBT justice. And there are other checkboxes missing as well. This will not do. I say hold the seat until a physically handicapped Black Lesbian of Hispanic heritage and eastern religious creed with bipolar issues can be located. Perhaps an international search, with a preference for third world candidates, is indicated. A non English speaker would surely increase our diversity quotient!!!

  2. First, I want to thank Justice Rucker for his many years of public service, not just at the appellate court level for over 25 years, but also when he served the people of Lake County as a Deputy Prosecutor, City Attorney for Gary, IN, and in private practice in a smaller, highly diverse community with a history of serious economic challenges, ethnic tensions, and recently publicized but apparently long-standing environmental health risks to some of its poorest residents. Congratulations for having the dedication & courage to practice law in areas many in our state might have considered too dangerous or too poor at different points in time. It was also courageous to step into a prominent and highly visible position of public service & respect in the early 1990's, remaining in a position that left you open to state-wide public scrutiny (without any glitches) for over 25 years. Yes, Hoosiers of all backgrounds can take pride in your many years of public service. But people of color who watched your ascent to the highest levels of state government no doubt felt even more as you transcended some real & perhaps some perceived social, economic, academic and professional barriers. You were living proof that, with hard work, dedication & a spirit of public service, a person who shared their same skin tone or came from the same county they grew up in could achieve great success. At the same time, perhaps unknowingly, you helped fellow members of the judiciary, court staff, litigants and the public better understand that differences that are only skin-deep neither define nor limit a person's character, abilities or prospects in life. You also helped others appreciate that people of different races & backgrounds can live and work together peacefully & productively for the greater good of all. Those are truths that didn't have to be written down in court opinions. Anyone paying attention could see that truth lived out every day you devoted to public service. I believe you have been a "trailblazer" in Indiana's legal community and its judiciary. I also embrace your belief that society's needs can be better served when people in positions of governmental power reflect the many complexions of the population that they serve. Whether through greater understanding across the existing racial spectrum or through the removal of some real and some perceived color-based, hope-crushing barriers to life opportunities & success, movement toward a more reflective representation of the population being governed will lead to greater and uninterrupted respect for laws designed to protect all peoples' rights to life, liberty & the pursuit of happiness. Thanks again for a job well-done & for the inevitable positive impact your service has had - and will continue to have - on countless Hoosiers of all backgrounds & colors.

  3. Diversity is important, but with some limitations. For instance, diversity of experience is a great thing that can be very helpful in certain jobs or roles. Diversity of skin color is never important, ever, under any circumstance. To think that skin color changes one single thing about a person is patently racist and offensive. Likewise, diversity of values is useless. Some values are better than others. In the case of a supreme court justice, I actually think diversity is unimportant. The justices are not to impose their own beliefs on rulings, but need to apply the law to the facts in an objective manner.

  4. Have been seeing this wonderful physician for a few years and was one of his patients who told him about what we were being told at CVS. Multiple ones. This was a witch hunt and they shold be ashamed of how patients were treated. Most of all, CVS should be ashamed for what they put this physician through. So thankful he fought back. His office is no "pill mill'. He does drug testing multiple times a year and sees patients a minimum of four times a year.

  5. Brian W, I fear I have not been sufficiently entertaining to bring you back. Here is a real laugh track that just might do it. When one is grabbed by the scruff of his worldview and made to choose between his Confession and his profession ... it is a not a hard choice, given the Confession affects eternity. But then comes the hardship in this world. Imagine how often I hear taunts like yours ... "what, you could not even pass character and fitness after they let you sit and pass their bar exam ... dude, there must really be something wrong with you!" Even one of the Bishop's foremost courtiers said that, when explaining why the RCC refused to stand with me. You want entertaining? How about watching your personal economy crash while you have a wife and five kids to clothe and feed. And you can't because you cannot work, because those demanding you cast off your Confession to be allowed into "their" profession have all the control. And you know that they are wrong, dead wrong, and that even the professional code itself allows your Faithful stand, to wit: "A lawyer may refuse to comply with an obligation imposed by law upon a good faith belief that no valid obligation exists. The provisions of Rule 1.2(d) concerning a good faith challenge to the validity, scope, meaning or application of the law apply to challenges of legal regulation of the practice of law." YET YOU ARE A NONPERSON before the BLE, and will not be heard on your rights or their duties to the law -- you are under tyranny, not law. And so they win in this world, you lose, and you lose even your belief in the rule of law, and demoralization joins poverty, and very troubling thoughts impeaching self worth rush in to fill the void where your career once lived. Thoughts you did not think possible. You find yourself a failure ... in your profession, in your support of your family, in the mirror. And there is little to keep hope alive, because tyranny rules so firmly and none, not the church, not the NGO's, none truly give a damn. Not even a new court, who pay such lip service to justice and ancient role models. You want entertainment? Well if you are on the side of the courtiers running the system that has crushed me, as I suspect you are, then Orwell must be a real riot: "There will be no curiosity, no enjoyment of the process of life. All competing pleasures will be destroyed. But always — do not forget this, Winston — always there will be the intoxication of power, constantly increasing and constantly growing subtler. Always, at every moment, there will be the thrill of victory, the sensation of trampling on an enemy who is helpless. If you want a picture of the future, imagine a boot stamping on a human face — forever." I never thought they would win, I always thought that at the end of the day the rule of law would prevail. Yes, the rule of man's law. Instead power prevailed, so many rules broken by the system to break me. It took years, but, finally, the end that Dr Bowman predicted is upon me, the end that she advised the BLE to take to break me. Ironically, that is the one thing in her far left of center report that the BLE (after stamping, in red ink, on Jan 22) is uninterested in, as that the BLE and ADA office that used the federal statute as a sword now refuses to even dialogue on her dire prediction as to my fate. "C'est la vie" Entertaining enough for you, status quo defender?

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