Opinions

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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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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Opinions July 22, 2013

July 22, 2013
Indiana Court of Appeals
Thomas Dexter v. State of Indiana
79A04-1212-CR-611
Criminal. Affirms finding by jury after remand that Dexter is a habitual offender and the sentence enhancement of 30 years on his conviction of Class A felony neglect of a dependent resulting in death. The certified transcript from Dexter’s guilty-plea and sentencing hearing is sufficient to prove one of his underlying felony convictions, and his habitual-offender retrial was not barred by res judicata.
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Opinions July 19, 2013

July 19, 2013
Indiana Court of Appeals
Kenneth Scholz v. Lorraine Kirk (NFP)
37A03-1211-PL-493
Civil plenary. Affirms the trial court’s determination of the amount of damages for the rental income for the farmland. Reverses award of prejudgment interest to Kirk.
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Opinions July 18, 2013

July 18, 2013
Indiana Supreme Court
In Re the Guardianship of A.J.A. and L.M.A., Minor Children; J.C. v. J.B. and S.B.
48S02-1305-GU-398
Guardianship. Holds the trial court correctly vacated its original order granting grandparent visitation. The Grandparent Visitation Statute does not provide a means by which the paternal grandmother in this case may seek visitation when her son has murdered the mother of her two grandchildren.
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Opinions July 16, 2013

July 16, 2013
7th Circuit Court of Appeals
Hoosier Environmental Council and Citizens for Appropriate Rural Roads v. United States Army Corps of Engineers and Indiana Department of Transportation
12-3187
Civil/agency action. Affirms the U.S. Court for the Southern District of Indiana’s grant of summary judgment in favor of the Corps of Engineers, holding that the Corps evaluated all of the wetland-protection factors required in its approval of a Clean Water Act permit to construct a section of Interstate 69 about 25 miles south of Bloomington.  

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Opinions July 15, 2013

July 15, 2013
Indiana Court of Appeals
Tuan Chu v. State of Indiana
49A04-1210-CR-495
Criminal. Affirms convictions for three counts of Class D felony evasion of income tax, three counts of Class D felony theft, and one county of Class D felony failure to remit or collect sales tax. Chu appealed on the grounds that the nonpayment penalty of $280,326.62 and his criminal convictions violated double jeopardy principles. The COA stated it was not convinced that the nonpayment penalties were punishments for double jeopardy purposes and it disagreed with Chu’s assertion that the imposition of the nonpayment penalties was conditioned on the commission of a crime.
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Opinions July 12, 2013

July 12, 2013
7th Circuit Court of Appeals
Miguel Gutierrez v. Michael R. Kermon
12-2934
Civil/wrongful arrest, excessive force. Dismisses Indianapolis Metropolitan Police Department officer Michael Kermon’s interlocutory appeal of a denial of summary judgment on the basis of qualified immunity from a wrongful arrest and excessive force lawsuit. The court held that it had no jurisdiction over the interlocutory appeal because Kermon’s argument was dependent on a disputed fact and the court will not reweigh evidence.
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Opinions July 11, 2013

July 11, 2013
7th Circuit Court of Appeals
United States of America v. Danny Harmon
12-1502
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge Jane E. Magnus-Stinson.
Criminal. Affirms convictions of marijuana conspiracy and related offenses and 360-month sentence. A trial continuance did not violate his Sixth Amendment right to a speedy trial and the disclosure of Harmon’s prior drug conviction did not deprive him of a fair trial. The court did not make a mistake in finding Harmon responsible for more than 10,000 kilograms of marijuana.
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  1. Ah yes... Echoes of 1963 as a ghostly George Wallace makes his stand at the Schoolhouse door. We now know about the stand of personal belief over service to all constituents at the Carter County Clerk door. The results are the same, bigotry unable to follow the directions of the courts and the courts win. Interesting to watch the personal belief take a back seat rather than resign from a perception of local power to make the statement.

  2. An oath of office, does it override the conscience? That is the defense of overall soldier who violates higher laws, isnt it? "I was just following orders" and "I swore an oath of loyalty to der Fuhrer" etc. So this is an interesting case of swearing a false oath and then knowing that it was wrong and doing the right thing. Maybe they should chop her head off too like the "king's good servant-- but God's first" like St Thomas More. ...... We wont hold our breath waiting for the aclu or other "civil liberterians" to come to her defense since they are all arrayed on the gay side, to a man or should I say to a man and womyn?

  3. Perhaps we should also convene a panel of independent anthropological experts to study the issues surrounding this little-known branch of human sacrifice?

  4. 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.

  5. 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.

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