Opinions

Opinions June 15, 2012

June 15, 2012
Indiana Court of Appeals
David Ashabranner v. Sandy Wilkins, f/k/a Ashabranner
22A01-1109-DR-411
Domestic relations. Affirms in part and remands in part. Affirms the trial court’s denial of emancipation of a child and remands for recalculation of child support payments, adjusting to include payment from the mother as well as the father.
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Opinions June 14, 2012

June 14, 2012
Indiana Court of Appeals
In Re the Term. of the Parent-Child Rel. of: C.V., O.V., and J.V. and G.J. v. The Indiana Dept. of Child Services (NFP)
10A01-1111-JT-516
Juvenile. Affirms termination of parental rights.
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Opinions June 13, 2012

June 13, 2012
7th Circuit Court of Appeals
United States of America v. Cristofer Tichenor
11-2433
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge Sarah Evans Barker
Criminal. Affirms 300-month sentence following guilty plea to armed robbery and discharging a firearm in connection with robbing a bank. Rejects Tichenor’s argument that the career offender sentencing guideline is unconstitutionally vague, finding that the guidelines are not susceptible to vagueness challenges and the U.S. Sentencing Commission did not exceed its authority by promulgating the “crime of violence” definition.
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Opinions June 12, 2012

June 12, 2012
7th Circuit Court of Appeals
Svetlana Arizanovska v. Wal-Mart Stores, Incorporated
11-3387
U.S. District Court, Southern District of Indiana, Indianapolis Division, Chief Judge Richard L. Young.
Civil. Affirms District Court’s finding of summary judgment against Arizanovska on her claims of discrimination, retaliation and other state-law claims against her employer, Wal-Mart. Holds that Wal-Mart’s suggestion that Arizanovska take an unpaid leave of absence was outlined in company policy and was not an adverse, retaliatory response to her filing a discrimination claim.
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Opinions June 11, 2012

June 11, 2012
7th Circuit Court of Appeals
IP of A West 86th Street 1, LLC, et al., v. Morgan Stanley Worldwide Capital Holdings, LLC
11-2891
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge Sarah Evans Barker.
Civil. Affirms District Court’s summary judgment in favor of Morgan Stanley, holding that the company was entitled to structure the sale of a loan as it wished and that the company did not err in allowing a purchaser to use escrow funds to finance the sale.
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Opinions June 8, 2012

June 8, 2012
7th Circuit Court of Appeals
Kenneth Harper v. C.R. England, Incorporated
11-2975
U. S. District Court, Northern District of Indiana, Hammond Division, Magistrate Judge Paul R. Cherry.
Civil. Affirms District Court’s determination that Harper failed to set forth a prima facie case, under either the direct or indirect method of proof, to support his claim that C.R. England had retaliated against him for reporting what he believed to be unlawful racial discrimination. Holds that his record shows excessive absences were the cause for his termination.
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Opinions June 7, 2012

June 7, 2012
Indiana Court of Appeals
A.R.M. v. State of Indiana
71A05-1111-JV-613
Juvenile. Affirms juvenile court’s adjudication of A.R.M. as a delinquent child for committing child molesting, as a Class C felony when committed by an adult, and battery, as a Class B misdemeanor when committed by an adult. Holds that the court did not err in admitting the child victim’s videotaped testimony.
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Opinions June 6, 2012

June 6, 2012
Indiana Court of Appeals
Keith D. Jackson v. State of Indiana
20A03-1105-CR-222
Criminal. Reverses sentence for possession of a firearm by a serious violent felon and remands for resentencing, holding the trial court erred by imposing a suspended sentence of four years contrary to the accepted plea agreement.
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Opinions June 5, 2012

June 5, 2012
Indiana Court of Appeals
Kevin C. O'Connell v. State of Indiana
18A02-1109-CR-889
Criminal. Affirms trial court’s decision to refuse O’Connell’s tendered jury instructions that the word “voluntary” be included with each of his charges. Holds that other instructions covered the substance of the tendered instructions.
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Opinions June 4, 2012

June 4, 2012
Indiana Court of Appeals
R. Bruce Wallace v. Alliance Environmental, Inc. and Ruth Brown (NFP)

49A04-1111-CC-665
Civil collection. Affirms trial court’s recalculation of damages to Brown for Wallace’s breach of fiduciary duty.
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Opinions June 1, 2012

June 1, 2012
7th Circuit Court of Appeals
United States of America v. Michael Sheneman
11-3161
U.S. District Court, Northern District of Indiana, South Bend Division, Judge Jon E. DeGuilio.
Criminal. Affirms convictions and sentence for four counts of wire fraud in a two-year mortgage fraud scheme. Holds that Sheneman’s sentence enhancements were justified, due to the sophisticated means used to execute the fraud.
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Opinions May 31, 2012

May 31, 2012
7th Circuit Court of Appeals
United States of America v. Aaron M. Davis, Bobby Suggs, et al.
11-1313, 11-1323, et al.
U.S. District Court, Northern District of Indiana, Hammond Division, Judge James T. Moody.
Criminal. In consolidated appeal, affirms denial of the six defendants’ motion to reduce their sentences pursuant to 18 U.S.C. Section 3582(c)(2) based on the retroactive crack cocaine amendments to the United States Sentencing Guidelines. The District Court did not have the power to adjudicate Suggs’ motion and lacked subject-matter jurisdiction. There is sufficient evidence for the District Court to conclude the other defendants were responsible for at least 4.5 kilograms of crack cocaine, which would prevent their sentences from being reduced.
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Opinions May 30, 2012

May 30, 2012
Indiana Court of Appeals
Clifton Ervin v. State of Indiana
29A05-1109-CR-454
Criminal. Affirms grant of a portion of Ervin’s motion to suppress. The trial court properly determined that the evidence seized by the uniformed on-duty police officers should not be suppressed pursuant to the exclusionary rule. Remands for trial.
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Opinions May 29, 2012

May 29, 2012
Indiana Court of Appeals
Jason Tye Myers v. Charles R. Deets III, Deets & Kennedy, and Great American Insurance Group
79A02-1108-CT-771
Civil tort. Affirms summary judgment for Edward Kennedy and the law firm on Myers’ claim for fraud against them and Deets. Myers couldn’t show that either Kennedy or the law firm was liable for Deets’ alleged fraudulent conduct. Reverses grant of Great American Insurance Group’s motion for judgment on the pleadings and remands for further proceedings. Judge Riley concurs in part and dissents in part.
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Opinions May 25, 2012

May 25, 2012
Indiana Court of Appeals
E. Paul Haste v. State of Indiana
03A01-1108-CR-369
Criminal. Dismisses Haste’s appeal of his conviction of and sentence for Class B felony dealing in methamphetamine because the order from which he appeals isn’t a final judgment.
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Opinions May 24, 2012

May 24, 2012
Indiana Court of Appeals
Finance Center Federal Credit Union v. Ronnie D. Brand, Debora J. Brand and GMAC Mortgage, LLC
49A02-1111-MF-1089
Mortgage foreclosure. Affirms partial summary judgment in favor of GMAC regarding the priority of the GMAC Mortgage and Finance Center Federal Credit Union mortgages. Equity should not allow the Finance Center to gain an unexpectedly elevated priority because of any negligence of GMAC that did not harm Finance Center.
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Opinions May 23, 2012

May 23, 2012
Indiana Court of Appeals
Gabriel J. Sharkey v. State of Indiana
84A04-1110-CR-550
Criminal. Affirms sentence following guilty plea to Class D felony intimidation. Sharkey’s 18-month suspended sentence is appropriate in light of the nature of the crime and his character.
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Opinions May 22, 2012

May 22, 2012
Indiana Court of Appeals
In the Matter of V.H.; J.H. v. Indiana Dept. of Child Services

49A02-1110-JC-947
Juvenile. Reverses juvenile court’s grant of CHINS petition and vacates the court’s participation order, holding that the CHINS adjudication and participation decree were erroneous.
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Opinions May 21, 2012

May 21, 2012
7th Circuit Court of Appeals
Kristi J. Cortezano v. Salin Bank & Trust Company

United States District Court, Southern District of Indiana, Indianapolis Division, Judge Sarah Evans Barker.
11-1631
Civil. Affirms District court’s grant of summary judgment in favor of Salin Bank & Trust Company, holding the bank did not violate Cortezano’s rights by firing her due to her husband’s immigration status. Remands to the District Court to strike from the record the names of Cortezano’s three children, as the District Court had not previously ruled on that motion.
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Opinions May 18, 2012

May 18, 2012
Indiana Court of Appeals
In Re the Adoption of S.J., R.W. v. G.C. and J.C.
04A03-1110-AD-449
Adoption. Dismisses appeal from R.W., the biological father of S.J., holding than an order that states his consent is not required for the petition to proceed neither grants nor denies S.J.’s adoption and is not a final, appealable action.
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Opinions May 17, 2012

May 17, 2012
Indiana Court of Appeals
Heriberto Suarez v. State of Indiana
02A05-1106-PC-325
Post conviction. Affirms denial of petition for post-conviction relief. The court did not err in denying his claim that he received ineffective assistance of trial counsel.
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Opinions May 16, 2012

May 16, 2012
Indiana Court of Appeals
Robert A. Turner v. State of Indiana (NFP)
62A01-1111-CR-514
Criminal. Affirms imposition of public defender fee.
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Opinions May 14, 2012

May 14, 2012
Indiana Court of Appeals
Dana L. Lewis, Jr. v. State of Indiana
40A01-1106-CR-276
Criminal. Reverses denial of Lewis’ motion to suppress statements he made during a police interview regarding an alleged sex crime. Lewis’ question, “Can I get a lawyer?” constituted an unequivocal invocation of his Fifth Amendment right to counsel.
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Opinions May 11, 2012

May 11, 2012
7th Circuit Court of Appeals
BMD Contractors Inc. v. Fidelity and Deposit Company of Maryland
11-1345
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge Tanya Walton Pratt.
Civil. Affirms summary judgment for Fidelity and Deposit Company of Maryland. The Industrial Power/BMD Contractors subcontract expressly provides that Industrial Power’s receipt of payment is a condition precedent to its obligation to pay BMD. Because Industrial Power was never obligated to pay BMD in the first place, BMD may not recover against Fidelity on the payment bond. Also holds that pay-if-paid clauses are not void under Indiana public policy.
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Opinions May 10, 2012

May 10, 2012
Indiana Court of Appeals
Allison Riggle v. State of Indiana
49A05-1109-CR-472
Criminal. Reverses conviction of Class A misdemeanor possession of marijuana. The traffic stop was invalid because Riggle did not commit a traffic violation. Remands with instructions to vacate her conviction.
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  1. The child support award is many times what the custodial parent earns, and exceeds the actual costs of providing for the children's needs. My fiance and I have agreed that if we divorce, that the children will be provided for using a shared checking account like this one(http://www.mediate.com/articles/if_they_can_do_parenting_plans.cfm) to avoid the hidden alimony in Indiana's child support guidelines.

  2. Fiat justitia ruat caelum is a Latin legal phrase, meaning "Let justice be done though the heavens fall." The maxim signifies the belief that justice must be realized regardless of consequences.

  3. Indiana up holds this behavior. the state police know they got it made.

  4. Additional Points: -Civility in the profession: Treating others with respect will not only move others to respect you, it will show a shared respect for the legal system we are all sworn to protect. When attorneys engage in unnecessary personal attacks, they lose the respect and favor of judges, jurors, the person being attacked, and others witnessing or reading the communication. It's not always easy to put anger aside, but if you don't, you will lose respect, credibility, cases, clients & jobs or job opportunities. -Read Rule 22 of the Admission & Discipline Rules. Capture that spirit and apply those principles in your daily work. -Strive to represent clients in a manner that communicates the importance you place on the legal matter you're privileged to handle for them. -There are good lawyers of all ages, but no one is perfect. Older lawyers can learn valuable skills from younger lawyers who tend to be more adept with new technologies that can improve work quality and speed. Older lawyers have already tackled more legal issues and worked through more of the problems encountered when representing clients on various types of legal matters. If there's mutual respect and a willingness to learn from each other, it will help make both attorneys better lawyers. -Erosion of the public trust in lawyers wears down public confidence in the rule of law. Always keep your duty to the profession in mind. -You can learn so much by asking questions & actively listening to instructions and advice from more experienced attorneys, regardless of how many years or decades you've each practiced law. Don't miss out on that chance.

  5. Agreed on 4th Amendment call - that was just bad policing that resulted in dismissal for repeat offender. What kind of parent names their boy "Kriston"?

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