Opinions

Opinions Aug. 5, 2011

August 5, 2011
7th Circuit Court of Appeals
Jayne A. Mathews-Sheets v. Michael J. Astrue, Commissioner of Social Security
10-3746
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge William T. Lawrence.
Civil. Reverses denial of request for $25,200 in attorney fees after prevailing in a suit for Social Security disability benefits. On remand the plaintiff’s lawyer will have to show that without a cost-of-living increase that would bring the fee award up to $170 per hour, a lawyer capable of competently handling the challenge that his client mounted to the denial of Social Security disability benefits could not be found in the relevant geographical area to handle such a case.
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Opinions Aug. 4, 2011

August 4, 2011
Indiana Court of Appeals
Terrence Williams v. State of Indiana
49A02-1101-CR-9
Criminal. Reverses denial of Williams’ petition that a handgun seized by police be released to his counsel. Williams asked the gun be returned after his carrying a handgun without a license charge was dismissed. Williams’ inability to lawfully possess a handgun, without more, doesn’t prevent the return of the gun to his counsel.
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Opinions, Aug. 3, 2011

August 3, 2011
Indiana Court of Appeals
T.W. v. Review Board
93A02-1011-EX-1223
Agency action. Reverses finding that T.W. was ineligible to receive unemployment benefits as a result of his failure to disclose self-employment. There is no statutory or evidentiary basis for a finding that T.W.’s failure to disclose his relationship with Professional Labor Services would disqualify him from receiving benefits, reduce his benefits, or render him ineligible for benefits or extended benefits. Remands for further proceedings.
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Opinions Aug. 2, 2011

August 2, 2011
Indiana Court of Appeals
Bryan Johnson v. State of Indiana
45A05-1012-CR-816
Criminal. Affirms court’s denial of motion to suppress, citing a “good faith” exception to the admissibility of a search warrant. Holds that the detective believed a court employee had taken care of all the steps necessary to properly file a search warrant. 
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Opinions Aug. 1, 2011

August 1, 2011
7th Circuit Court of Appeals
Joshua Resendez v. Wendy Knight
11-1121
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge Sarah Evans Barker.
Civil. Judge Kenneth Ripple grants Resendez’s application for certificate of appealability. The application set forth a substantial showing of the denial of a constitutional right.
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Opinions July 29, 2011

July 29, 2011
Indiana Court of Appeals
Don Harley v. State of Indiana
20A03-1012-PC-630
Post conviction. Reverses denial of petition for post-conviction relief and remands for a new trial. Harley’s trial attorney was ineffective when she failed to inform the trial court that Harley’s only income consisted of Supplemental Security Income.
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Opinions July 28, 2011

July 28, 2011
Indiana Court of Appeals
Jason Keigley v. State of Indiana (NFP)
49A04-1012-CR-743
Criminal. Affirms convictions of and sentence for Class C felony identity deception and five counts of Class D felony fraud in loan brokering.
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Opinions July 27, 2011

July 27, 2011
Indiana Court of Appeals
James W. Miller v. State of Indiana
64A03-1008-CR-543
Criminal. Affirms convictions of two counts of Class A misdemeanor neglect of a vertebrate animal. The evidence is sufficient to show that Miller recklessly endangered the horses’ health by failing to provide them adequate food so as to neglect them. The trial court’s failure to appoint the state veterinarian doesn’t require the reversal of Miller’s convictions.
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Opinions July 26, 2011

July 26, 2011
Indiana Court of Appeals
Mary McCraney v. Steven Gibson, et al.
49A05-1009-CT-528
Civil tort. Affirms summary judgment in favor of Steven Gibson, and Bradley and Natalie Calow with respect to Mary McCraney’s negligence claim resulting in personal injuries. Applying the two-prong test, which finds that the duty of reasonable care imposed upon a landowner is measured by the landowner’s control or possession of the property and the landowner’s knowledge of the dangerous propensities of the dog, McCraney fails to prove the landlords knew of the dog’s violent propensity.
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Opinions July 25, 2011

July 25, 2011
Indiana Court of Appeals
Lauren Pease v. Edward Pease (NFP)
18A05-1010-DR-671
Domestic relation. Affirms division of marital estate and order that each party pay its own attorney fees.
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Opinions July 22, 2011

July 22, 2011
7th Circuit Court of Appeals
Continental Casualty Co. v. Sycamore Springs Homeowners Association Inc.
10-3261
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge Larry McKinney.
Civil. Affirms District Court’s conclusion that the homeowners association had not suffered “property damage” as defined in Continental Casualty’s policy insuring the builder. The language of the association’s own complaint in state court and the absence of any effort to apportion the $335,000 entitles Continental to judgment.
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Opinions July 21, 2011

July 21, 2011
7th Circuit Court of Appeals
Townsquare Media Inc., f/k/a Regent Communications Inc. v. Alan R. Brill, et al.
10-3017, 10-3018
U.S. District Court, Southern District of Indiana, Evansville Division, Chief Judge Richard Young.
Civil. The decision of the bankruptcy court to remand a suit to state court – which had been removed to the bankruptcy court after being filed in state court – is unreviewable and Regent’s appeal must be dismissed.
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Opinions July 20, 2011

July 20, 2011
Indiana Court of Appeals
Marianne Jackson v. Thomas Trancik, M.D.
29A02-1012-CC-1391
Civil collections. Reverses summary judgment to Dr. Trancik on his lawsuit to collect on a medical bill. The trial court abused its discretion in striking the affidavit of an expert witness designated by Jackson and that affidavit establishes an issue of material fact as to the amount she owes. Remand for further proceedings.
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Opinions July 19, 2011

July 19, 2011
7th Circuit Court of Appeals
Dana Woods, et al. v. Commissioner of the Indiana Department of Corrections
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge Jane E. Magnus-Stinson
10-3339
Civil. Affirms U.S. District Court’s finding that the Indiana Department of Correction policy preventing inmates from advertising for pen-pals and receiving materials from websites that allow persons to advertise for pen-pals is constitutional.
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Opinions July 18, 2011

July 18, 2011
Indiana Court of Appeals
David Delagrange v. State of Indiana
49A02-1010-CR-1086
Criminal. Affirms partial denial of motion to dismiss. The state has alleged that Delagrange knowingly or intentionally attempted to create an image of sexual conduct, which is a sufficient statement of Delagrange’s mental state to survive a motion to dismiss. Remands for further proceedings. Judge Baker dissents.
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Opinions July 15, 2011

July 15, 2011
Indiana Court of Appeals
Estate of Wilgus S. Gibbs, Sr.
81A01-1011-ES-560
Estate. Affirms grant of summary judgment in favor of Wilgus Gibbs Jr., individually and as a personal representative of the estate and executor of the will of Wilgus Gibbs Sr. Gibbs Sr.’s granddaughters failed to rebut the presumption of regularity in the execution of his will that is established by the self-proving clause. There is also no evidence of undue influence or that the will was the result of a mistake or fraud.
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Opinions July 14, 2011

July 14, 2011
7th Circuit Court of Appeals
United States of America v. Nathaniel Josiah Worden
10-3567
U.S. District Court, Northern District of Indiana, Hammond Division, Judge Joseph Van Bokkelen.
Criminal. Dismisses appeal of District Court’s order that Worden pay approximately $500,000 in restitution to one of the victims of his offense. The restitution order falls within the scope of the appellate waiver in Worden’s plea agreement to one count of advertising child pornography.
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Opinions July 13, 2011

July 13, 2011
7th Circuit Court of Appeals
Jill Treat, et al. v. Tom Kelley Buick Pontiac GMC Inc, et al.
10-3166
U.S. District Court, Northern District of Indiana, Fort Wayne Division, Judge William Lee.
Civil. Affirms summary judgment for Tom Kelley Buick and Kelley Automotive Group in the Treats’ suit under the Wage Payment Statute to recover unpaid wages. The Treats erroneously brought their claim under the Wage Payment Statute instead of the Wage Claims Statute.
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Opinions July 12, 2011

July 12, 2011
Indiana Court of Appeals
Tameka Maria Redding v. State of Indiana (NFP)
71A04-1102-CR-104
Criminal. Affirms conviction of Class D felony attempted theft.
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Opinions July 11, 2011

July 11, 2011
7th Circuit Court of Appeals
Bishop Harvey Jr., et al. v. Town of Merrillville, et al.
11-1041
U.S. District Court, Northern District of Indiana, Hammond Division, Judge Joseph Van Bokkelen. Affirms summary judgment for the defendants on the homeowners’ Section 1983 equal protection claim. Without a similarly situated comparator, the homeowners’ equal protection claim cannot hold water. The District Court also did not err in failing to address the homeowners’ belatedly asserted and undeveloped contention that the defendants violated their First Amendment rights by suppressing their speech. Modifies judgment to dismiss without prejudice instead of remanding the state law claims.
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Opinins July 8, 2011

July 8, 2011
7th Circuit Court of Appeals
John A. Logan v. Donna Wilkins, M.D., et. al.
10-1415
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge William T. Lawrence.
Civil. Affirms decision of district court that Logan is not entitled to amend his initial complaint, holding that he had already been given the opportunity to do so but had not amended.
 
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Opinions July 7, 2011

July 7, 2011
Indiana Court of Appeals
N.K. v. Review Board
93A02-1012-EX-1431
Civil. Reverses determination by the Review Board of the Indiana Department of Workforce Development that a worker fired for taking leftovers was not entitled to unemployment benefits.
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Opinions July 6, 2011

July 6, 2011
Indiana Court of Appeals
J.L., Child Alleged to be C.H.I.N.S.; J.L. v. I.D.C.S.
32A01-1010-JC-532
Juvenile CHINS. Affirms trial court’s finding that mother’s two sons are children in need of services, because of the mother’s repeated unsubstantiated claims that the father was abusing the boys.
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Opinions July 5, 2011

July 5, 2011
Indiana Court of Appeals
Larry E. Snell v. K-Industrial, LLC (NFP)
02A03-1010-CC-523
Collections. Affirms trial court’s judgment in favor of K-Industrial and trial court’s partial summary judgment in favor of Larry Snell. Reverses award of attorney fees to Snell, holding that Snell’s complaint did not arise from his agreement with K-Industrial.
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Opinions July 1, 2011

July 1, 2011
7th Circuit Court of Appeals
Bobby Johnson Jr. v. Hix Wrecker Service Inc., et. al.
09-3023
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge William T. Lawrence.
Civil. Reverses District Court’s grant of summary judgment in favor of Hix Wrecker Service, stating Hix failed to prove that Bobby Johnson was not entitled to overtime pay. Remands for further proceedings.
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