Opinions Sept. 30, 2014

September 30, 2014
Indiana Supreme Court
Gersh Zavodnik v. Irene Harper
Civil plenary. Denies transfer to Zavodink’s appeal of the dismissal of his appeal for failure to file a timely brief and appendix. Offers guidance to courts on how to deal with prolific, abusive litigants.

Opinions Sept. 29, 2014

September 29, 2014
Indiana Court of Appeals
Bryan L. Good v. Wells Fargo Bank, NA.
Mortgage foreclosure. Reverses grant of partial summary judgment in favor of Wells Fargo and the subsequent judgment of foreclosure. The bank has not shown its status as holder of the promissory note signed by Good for purposes of the Uniform Commercial Code. Remands for further proceedings.

Opinions Sept. 26, 2014

September 26, 2014
Indiana Court of Appeals
Shacare Terry v. Community Health Network, Inc.
Civil plenary.  Affirms dismissal of Terry’s claim of breach of duty against Community Hospital, but reverses dismissal of intentional infliction of emotional distress claim. The breach of duty claim is, in substance, a medical malpractice claim, so the court did not have jurisdiction because it had not been submitted to the medical review panel yet. The trial court had subject matter over Terry’s emotional distress claim.

Opinions Sept. 25, 2014

September 25, 2014
The following Indiana Supreme Court opinion was posted after IL deadline Wednesday:
Scott Logan v. State of Indiana
Criminal. Reverses conviction of Class C felony child molesting and six-year sentence. Although the trial court technically complied with Criminal Rule 4(C), Logan’s 1,291-day delay between the filing of the charge and the beginning of his trial violated his constitutional right to a speedy trial. Orders Logan released from incarceration and remands for further proceedings.

Opinions Sept. 24, 2014

September 24, 2014
Indiana Court of Appeals
Albert L. Hauck and Mark Wood v. City of Indianapolis
Civil plenary. Affirms summary judgment in favor of Indianapolis on Hauck’s and Wood’s complaint regarding the Indianapolis Metropolitan Police Department’s failure to promote them to captain. The word “endeavor” as used in the ordinance means to “attempt to,” and the plaintiffs failed to show the city did not maintain proportional representation of former Marion County Sheriff’s Department deputies and Indianapolis Police Department officers throughout the divisions and appointed ranks of IMPD as contemplated by the revised code.

Opinions Sept. 23, 2014

September 23, 2014
Indiana Court of Appeals
The Branham Corporation v. Newland Resources, LLC; Samuel Sutphin; White River Funding Corp.; et al; Thomas N. Eckerle; Thomas N. Eckerle Prof. Corp. v. The Branham Corporation
Civil tort. Affirms the trial court’s summary judgment order in favor of the defendants. Reverses the order dismissing attorney Thomas Eckerle without prejudice and remands for entry of summary judgment in favor of Eckerle. Finds the trial court correctly determined the defendants were entitled to summary judgment because Branham filed its complaint for nonpayment of damages after the two-year statute of limitations had run.

Opinions Sept. 22, 2014

September 22, 2014
Indiana Supreme Court
In the Matter of: Trezanay M. Atkins
Attorney discipline. Suspends Atkins for two years without automatic reinstatement, finding she violated Indiana Rules of Professional Conduct 8.4(b), committing a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness; and 8.4(c), engaging in conduct involving dishonesty, fraud, deceit or misrepresentation.

Opinions Sept. 19, 2014

September 19, 2014
Indiana Court of Appeals
City of Mitchell v. Randy Phelix
Civil plenary. Reverses denial of its complaint for a declaratory judgment related to former Mitchell city policeman Randy Phelix’s claim for medical expenses due to disabilities resulting from dismantling methamphetamine labs. The appeals court held that the trial court erred when it ruled that Phelix was entitled to have the city pay his medical bills under I.C. 36-8-4-5 despite the worker’s compensation carrier’s denial of his claim.

Opinions Sept. 18, 2014

September 18, 2014
Indiana Supreme Court
State of Indiana v. Frank Greene
Post conviction. Reverses grant of post-conviction relief, which would have reduced Greene’s Class B felony criminal confinement conviction to a Class D felony. Greene did not receive ineffective assistance of trial or appellate counsel due to his attorneys’ failure to present allegedly controlling precedent from this court. Greene mischaracterizes the application of Long v. State.

Opinions Sept. 17, 2014

September 17, 2014
Indiana Court of Appeals
Robert P. Benavides v. State of Indiana (NFP)
Post conviction. Affirms dismissal of petition for writ of state habeas corpus.

Opinions Sept. 16, 2014

September 16, 2014
Indiana Court of Appeals
Willie Jenkins v. Mary Jenkins
Domestic relation. Reverses grant of Mary Jenkins’ motion to vacate a contempt hearing. It was not in the interests of justice for the trial court to ignore its rule of allowing 15 days to respond and granting her motion prior to allowing Willie Jenkins time for response. Remands for further proceedings.

Opinions Sept. 15, 2014

September 15, 2014
Indiana Court of Appeals
Jeremiah Lee Collins v. State of Indiana (NFP)
Criminal.  Affirms revocation of probation.

Opinions Sept. 12, 2014

September 12, 2014
Indiana Court of Appeals
In re the Marriage of Tina M. Harpenau v. Robin P. Harpenau
Domestic relation.  Affirms grant of father’s petition to modify, awarding him primary physical custody of the children and granting mother the same parenting time as father originally had, as well as that mother pay child support. The trial court did not abuse its discretion in modifying custody due to her proposed move or in modifying child support accordingly.

Opinions Sept. 11, 2014

September 11, 2014
7th Circuit Court of Appeals
Securities and Exchange Commission v. First Choice Management Services Inc., et al; CRM Energy Partners and John W. Hannah v. Joseph D. Bradley, Receiver
14-1270, 14-2284
U.S. District Court, Northern District of Indiana, South Bend Division, Judge Robert L. Miller Jr.
Civil. Affirms denial of CRM’s motion to intervene in the sale of an oil and gas lease in order to compensate victims of fraud. Dismisses its appeal of the District Court’s approval of the sale. CRM waited too long to intervene in the action.

Opinions Sept. 10, 2014

September 10, 2014
Indiana Supreme Court
Barbara J. Pohl v. Michael G. Pohl
Domestic relation. Reverses trial court and remands with instructions to apply the incapacity maintenance statute’s “substantial and continuing change in circumstances” standard to the evidence presented at the modification hearing. Any maintenance provision in a settlement agreement, regardless of its grounds, is modifiable only if the agreement so provides. The agreement in this matter contains such a provision.

Opinions Sept. 9, 2014

September 9, 2014
Indiana Court of Appeals
Robert O. Hedrick v. Angela R. Gilbert
Domestic relation. Affirmed in part, reversed in part. Affirms denial of Hedrick’s motion to modify support for post-secondary educational expenses and affirms order of contempt and $500 fine issued to Hedrick for failing to abide by prior court rulings. Reverses the award to Gilbert of $1,000 in attorney fees as part of the contempt order, ruling that the trial court did not make findings that Hedrick’s petition to modify was frivolous, unreasonable or groundless.

Opinions Sept. 8, 2014

September 8, 2014
Indiana Court of Appeals
Citizens Action Coalition of Indiana, Inc., Save the Valley, Inc., Sierra Club, and Valley Watch, Inc. v. Duke Energy Indiana, Inc., Indiana Office of Utility Consumer Counselor
Agency action. Remands to the Indiana Utility Regulatory Commission its order approving Duke’s request to include power plant construction costs of the Edwardsport coal-gasification plant from Oct. 1, 2011, to March 31, 2012, in a rate adjustment rider. Remands for findings as to whether a delay was chargeable to Duke and, if so, what impact the delay had on Duke’s customers’ rates. Also remands for a clear statement of the policy and evidentiary considerations underlying IURC’s determination that 50 percent of the plant was deemed in-service.

Opinions Sept. 5, 2014

September 5, 2014
7th Circuit Court of Appeals
Marilyn Rae Baskin v. Penny Bogan
Midori Fujii v. Commissioner of the Indiana State Department of Health
Pamela Lee v. Brian Abbott
U.S. District Court, Southern District of Indiana, Indianapolis Division, Chief Judge Richard Young
Civil. Affirms District Court judgment invalidating and enjoining Indiana and Wisconsin prohibitions on same-sex marriage. The 7th Circuit consolidated the three same-sex marriage cases from Indiana into one opinion with the single case from Wisconsin, Wolf et al. v. Walker, et al., 14:2526. The court confined its ruling to the 14th Amendment’s Equal Protection Clause and did not address the plaintiffs’ due process arguments. Rejects Indiana’s responsible procreation argument, finding Indiana’s prohibition on same-sex marriage discriminates against gays and lesbians.

Opinions Sept. 4, 2014

September 4, 2014
Indiana Supreme Court
TP Orthodontics, Inc., Christopher Kesling, DDS, MS, Adam Kesling, and Emily Kesling, et al. v. Andrew Kesling, Individually and as Trustee of the Andrew C. Kesling Trust Dated March 28, 2001 et al.
Miscellaneous. Finds the trial court abused its discretion in ordering disclosure of the full special litigation committee report, as portions of it containing privileged information cannot be disclosed to the sibling shareholders. Remands to the trial court to conduct an in camera review of the full report to determine whether the designate material is in fact privileged.

Opinions Sept. 3, 2014

September 3, 2014
Indiana Supreme Court
Natural Resources Defense Council v. Poet Biorefining- North Manchester, LLC, Poet Biorefining- Cloverdale, LLC, Central Indiana Ethanol, Inc., et al.
Miscellaneous. IDEM was not required to formally amend Indiana’s state implementation plan with the EPA to effectuate its change in how it interprets the regulatory phrase “chemical process plant.” IDEM’s interpretation to exclude fuel ethanol plants under the definition of “chemical process plant” is legally permissible.

Opinions Sept. 2, 2014

September 2, 2014
7th Circuit Court of Appeals
James M. Sweeney, et al. v. Gov. Michael Pence, et al.
U.S. District Court, Northern District of Indiana, Hammond Division, Chief Judge Philip P. Simon.
Civil. Affirms dismissal of union’s lawsuit arguing the Right to Work Act violates union members’ rights under the U.S. Constitution and is preempted by federal labor legislation. The legislation is not preempted by the scheme of federal labor law and does not violate any constitutional rights. Judge Tinder for the majority writes that the controversy of the law needs to be addressed legislatively, not through the courts. Chief Judge Wood dissents.

Opinions Aug. 29, 2014

August 29, 2014
Indiana Court of Appeals
C.H. v. State of Indiana
Juvenile. Affirms officer’s stop of C.H. because he was believed to be a suspect in a crime and the order of restitution because C.H. never objected to the order he pay restitution. Reverses adjudication of what would be Class B misdemeanor unlawful entry of a motor vehicle because the same evidence was used to adjudicate C.H. of that charge and what would be Class A misdemeanor trespass. Remands for further proceedings.

Opinions Aug. 28, 2014

August 28, 2014
Indiana Court of Appeals
Nightingale Home Healthcare, Inc. v. Carey Helmuth and Physiocare Home Healthcare, LLC
Civil plenary. Affirms summary judgment in favor of Helmuth and Physiocare Home Healthcare LLC, in which the trial court concluded that Helmuth’s 10-day break in employment with Nightingale served as the starting point of his limited non-competition and non-disclosure agreement.

Opinions Aug. 27, 2014

August 27, 2014
7th Circuit Court of Appeals
Kenneth Owen Scrogham v. Carolyn W. Colvin, acting commissioner of Social Security
U.S. District Court, Southern District of Indiana, New Albany Division, Judge Tanya Walton Pratt.
Civil. Reverses denial of application for disability benefits and remands for further proceedings. The administrative law judge’s methodology was flawed in several respects. Three logical errors – overstating the significance of Scrogham’s daily activities, overreliance on his rehabilitative efforts as proof of his fitness for full-time work, and misinterpreting the significance of his extensive treatment – had a material effect on the ALJ’s credibility and residual functional capacity assessments.

Opinions Aug. 26, 2014

August 26, 2014
7th Circuit Court of Appeals
Roy Smith v. Richard Brown
U.S. District Court, Northern District of Indiana, South Bend Division.
Judge James T. Moody
Criminal. Affirms the denial of Smith’s habeas petition. Finds although Smith’s counsel appeared to be particularly deficient, Smith failed to demonstrate how his lawyer’s substandard effort prejudiced his case since there was overwhelming evidence against him.

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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.