Opinions Aug. 22, 2013

August 22, 2013
Indiana Court of Appeals
Roger A. Buchanan and Susan Buchanan v. HSBC Mortgage Services, Inc.
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.

Opinions, Aug. 21, 2013

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

Rodney Melton v. State of Indiana
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.

Opinions Aug. 20, 2013

August 20, 2013
Indiana Court of Appeals
Carl J. Brandenburg v. State of Indiana
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.

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
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. 

Opinions Aug. 15, 2013

August 15, 2013
7th Circuit Court of Appeals
United States of America v. James Simon
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.

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

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.

Opinions August 12, 2013

August 12, 2013
7th Circuit Court of Appeals
Thomas H. Hurlow v. United States of America
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.

Opinions Aug. 9, 2013

August 9, 2013
7th Circuit Court of Appeals
Paul Hester v. Indiana State Department of Health
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.

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.
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.

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
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.

Opinions Aug. 5, 2013

August 5, 2013
Brad Kroft v. State of Indiana
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.

Opinions Aug. 1, 2013

August 1, 2013
Luxury Townhomes, LLC/LP XXIV, LLC, et al. v. McKinley Properties, Inc. and Kenneth Polsinelli
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.

Opinions July 31, 2013

July 31, 2013
7th Circuit Court of Appeals
Sikiru Adeyeye v. Heartland Sweeteners, LLC
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. 

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.
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.

Opinions July 29, 2013

July 29, 2013
Indiana Court of Appeals
Robert L. Murray v. State of Indiana (NFP)
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.

Opinions July 26, 2013

July 26, 2013
Indiana Court of Appeals
Jermaine Marcel Nash v. State of Indiana (NFP)
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.

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.

Opinions July 23, 2013

July 23, 2013
Indiana Court of Appeals
Gared Holdings, LLC v. Best Bolt Products, Inc.
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.

Opinions July 22, 2013

July 22, 2013
Indiana Court of Appeals
Thomas Dexter v. State of Indiana
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.

Opinions July 19, 2013

July 19, 2013
Indiana Court of Appeals
Kenneth Scholz v. Lorraine Kirk (NFP)
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.

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.
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.

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
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.  


Opinions July 15, 2013

July 15, 2013
Indiana Court of Appeals
Tuan Chu v. State of Indiana
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.

Opinions July 12, 2013

July 12, 2013
7th Circuit Court of Appeals
Miguel Gutierrez v. Michael R. Kermon
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.

Opinions July 11, 2013

July 11, 2013
7th Circuit Court of Appeals
United States of America v. Danny Harmon
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. Especially I would like to see all the republican voting patriotic good ole boys to stop and understand that the wars they have been volunteering for all along (especially the past decade at least) have not been for God & Jesus etc no far from it unless you think George Washington's face on the US dollar is god (and we know many do). When I saw the movie about Chris Kyle, I thought wow how many Hoosiers are just like this guy, out there taking orders to do the nasty on the designated bad guys, sometimes bleeding and dying, sometimes just serving and coming home to defend a system that really just views them as reliable cannon fodder. Maybe if the Christians of the red states would stop volunteering for the imperial legions and begin collecting welfare instead of working their butts off, there would be a change in attitude from the haughty professorial overlords that tell us when democracy is allowed and when it isn't. To come home from guarding the borders of the sandbox just to hear if they want the government to protect this country's borders then they are racists and bigots. Well maybe the professorial overlords should gird their own loins for war and fight their own battles in the sandbox. We can see what kind of system this really is from lawsuits like this and we can understand who it really serves. NOT US.... I mean what are all you Hoosiers waving the flag for, the right of the president to start wars of aggression to benefit the Saudis, the right of gay marriage, the right for illegal immigrants to invade our country, and the right of the ACLU to sue over displays of Baby Jesus? The right of the 1 percenters to get richer, the right of zombie banks to use taxpayer money to stay out of bankruptcy? The right of Congress to start a pissing match that could end in WWIII in Ukraine? None of that crud benefits us. We should be like the Amish. You don't have to go far from this farcical lawsuit to find the wise ones, they're in the buggies in the streets not far away....

  2. Moreover, we all know that the well heeled ACLU has a litigation strategy of outspending their adversaries. And, with the help of the legal system well trained in secularism, on top of the genuinely and admittedly secular 1st amendment, they have the strategic high ground. Maybe Christians should begin like the Amish to withdraw their services from the state and the public and become themselves a "people who shall dwell alone" and foster their own kind and let the other individuals and money interests fight it out endlessly in court. I mean, if "the people" don't see how little the state serves their interests, putting Mammon first at nearly every turn, then maybe it is time they wake up and smell the coffee. Maybe all the displays of religiosity by American poohbahs on down the decades have been a mask of piety that concealed their own materialistic inclinations. I know a lot of patriotic Christians don't like that notion but I entertain it more and more all the time.

  3. If I were a judge (and I am not just a humble citizen) I would be inclined to make a finding that there was no real controversy and dismiss them. Do we allow a lawsuit every time someone's feelings are hurt now? It's preposterous. The 1st amendment has become a sword in the hands of those who actually want to suppress religious liberty according to their own backers' conception of how it will serve their own private interests. The state has a duty of impartiality to all citizens to spend its judicial resources wisely and flush these idiotic suits over Nativity Scenes down the toilet where they belong... however as Christians we should welcome them as they are the very sort of persecution that separates the sheep from the wolves.

  4. What about the single mothers trying to protect their children from mentally abusive grandparents who hide who they truly are behind mounds and years of medication and have mentally abused their own children to the point of one being in jail and the other was on drugs. What about trying to keep those children from being subjected to the same abuse they were as a child? I can understand in the instance about the parent losing their right and the grandparent having raised the child previously! But not all circumstances grant this being OKAY! some of us parents are trying to protect our children and yes it is our God given right to make those decisions for our children as adults!! This is not just black and white and I will fight every ounce of this to get denied

  5. Mr Smith the theory of Christian persecution in Indiana has been run by the Indiana Supreme Court and soundly rejected there is no such thing according to those who rule over us. it is a thought crime to think otherwise.