Opinions

Opinions Nov. 21, 2012

November 21, 2012
7th Circuit Court of Appeals
United States of America v. William Hagler
11-2984
U.S. District Court, Northern District of Indiana, Fort Wayne Division, Judge William C. Lee.
Criminal. Affirms conviction of attempted bank robbery. Hagler argued that the government waited too long to indict him, that the evidence was insufficient to convict him, and that new DNA testing entitles him to a new trial.
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Opinions Nov. 20, 2012

November 20, 2012
7th Circuit Court of Appeals
United States of America v. Lincoln Plowman
11-3781
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge Larry J. McKinney.
Criminal. Affirms Plowman’s convictions of federal funds bribery and attempted extortion under color of official right. The District Court did not err when it precluded him from arguing entrapment to the jury.
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Opinions Nov. 19, 2012

November 19, 2012
Indiana Court of Appeals
Dr. Norma Kreilein, Rock Emmert, and Healthy Dubois County, Inc. v. Common Council of the City of Jasper and Jasper Utility Board
19A04-1201-MI-51
Miscellaneous/Open Door Law. Reverses trial court’s denial of plaintiffs’ motion to amend complaint, continue trial and compel discovery, and remands for a new trial. The court held that plaintiffs were diligent in pursing discovery but were thwarted for months by Jasper’s refusal to cooperate.
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Opinions Nov. 16, 2012

November 16, 2012
Indiana Court of Appeals
Marybeth Lebo v. State of Indiana
46A05-1202-CR-104
Criminal. Affirms trial court’s judgment in denying motion to dismiss charges of failure to report child abuse or neglect. Lebo argued the charges were not permissible because they came after the statute of limitations had passed but the COA disagreed, finding the Legislature’s intent was to make the failure to report a continuing offense. Otherwise, the court stated, the duty to report would be limited to the day on which the individual comes to believe abuse is taking place.
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Opinions Nov. 15, 2012

November 15, 2012
Indiana Court of Appeals
Derek Asklar and Pauline Asklar v. David Gilb, Paul Garrett Smith d/b/a P.H. One Trucking, Empire Fire and Marine Ins. Co., d/b/a Zurich; Travelers Ideminity Co. of America
02A03-1204-CT-170
Civil tort/insurance. Affirms in part and reverses in part the trial court’s grant of summary judgment in favor of Empire, holding that Indiana law rather than Georgia law should apply in the case, but determining that Empire’s uninsured/underinsured motorist coverage limit is still only $75,000, as the trial court ruled.
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Opinions Nov. 14, 2012

November 14, 2012
Indiana Court of Appeals
John Fox v. Nichter Construction Co., Inc.
03A01-1202-SC-52
Small claims/wages. Affirms in part, reverses in part and remands in part the dismissal of Fox’s wage claim with prejudice and orders the court to enter a dismissal of the claim with prejudice. A divided appeals court held that the trial court erred in dismissing the complaint because it lacked subject matter jurisdiction because Fox had pursued his claim through the Department of Labor under the Wage Claim statute before filing suit. The appeals court ordered the trial court to dismiss the case without prejudice for failure to state a claim upon which relief can be granted, including the failure to name the real party in interest. Fox may refile his claim setting forth the reassignment by the Department of Labor.
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Opinions Nov. 13, 2012

November 13, 2012
Indiana Supreme Court
D.C. v. J.A.C.
32S04-1206-DR-349
Domestic relation/modification of custody. Reverses Court of Appeals ruling that overturned a trial court modification of a custody order in favor of a child’s father. In a case involving a mother who was moving out of state, the Supreme Court held that the Court of Appeals erred by failing to apply a highly deferential standard of review to the trial court’s determination of a custody modification based on testimony regarding the best interests of the child.
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Opinions Nov. 9, 2012

November 9, 2012
Indiana Court of Appeals
Amerisafe Risk Services, Inc., and Leerae Riggs v. The Estate of Hazel D. Wadsack, deceased, by Ronald J. Wadsack as Personal Rep., and Ronald J. Wadsack, individually
88A01-1204-CT-144
Civil tort. Reverses trial court denial of plaintiff’s request for dismissal, holding that the court lacked jurisdiction in the case. The estate of an injured worker’s mother sued the worker’s compensation insurer, claiming that the mother died as a result of emotional distress over the insurer’s handling of her son’s claim. The appeals court held that the Wadsacks had not exhausted appeals through the Worker’s Compensation Board, which the court determined had proper jurisdiction because the Wadsacks’ claim was derivative of their son’s claims for benefits.
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Opinions Nov. 8, 2012

November 8, 2012
Indiana Court of Appeals
Jerome Michael Burton v. State of Indiana
45A03-1201-CR-6
Criminal. Reverses denial of motion to dismiss the charge of failure to register as a sex offender. Remands with instructions. Wallace applies and the ex post facto provision of the Indiana Constitution prevents the application of Indiana’s Sex Offender Registry Act to require Burton, a resident of Indiana, to register as a sex offender for an offense committed in Illinois in 1987.
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Opinions Nov. 7, 2012

November 7, 2012
Indiana Supreme Court
Michael Kucholick v. State of Indiana
12S02-1211-CR-630
Criminal. Justices grant transfer and order Kucholick’s sentence for Class C felony criminal recklessness and Class B misdemeanor criminal mischief revised to the advisory term of four years, all executed. Summarily affirms Court of Appeals decision in all respects. Chief Justice Dickson dissents, believing the trial court’s sentence of seven years should be affirmed.
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Opinions Nov. 6, 2012

November 6, 2012
Indiana Supreme Court
State of Indiana v. Elvis Holtsclaw

49S02-1205-CR-264
Criminal. Reverses dismissal of state’s notice of appeal and remands to the Court of Appeals for consideration of its merits, holding that the appeal is timely under Appellate Rule 9.
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Opinions Nov. 5, 2012

November 5, 2012
Indiana Court of Appeals
Steven E. Miles, a/k/a Robert Dutcher v. State of Indiana (NFP)
49A02-1204-PC-310
Post conviction. Affirms denial of petition for post-conviction relief.
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Opinions Nov. 2, 2012

November 2, 2012
Indiana Court of Appeals
Joshua A. Bostic v. State of Indiana
12A02-1202-CR-154
Criminal. Affirms convictions of Cass C felony attempted battery by means of a deadly weapon and criminal recklessness; Class D felony arson; Class A misdemeanor criminal mischief; and Class B misdemeanor criminal mischief, holding that Bostic waived his right to appeal under Criminal Rule 4(C) by failing to object to trial delays before the trial court. The court also found he likewise waived his right to appeal the process for appointing a special judge. Remands to the trial court to correct the sentencing order, abstract of judgment, and chronological case summary to reflect that Bostic’s 12-year habitual offender enhancement is an enhancement to his sentence for felony criminal recklessness, and not a separate conviction.
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Opinions Nov. 1, 2012

November 1, 2012
Indiana Court of Appeals
Leslie Bridges v. Veolia Water Indianapolis, LLC, Veolia Water North America Operating Service, LLC, and The City of Indianapolis, Dept. of Waterworks
49A02-1112-CC-1097
Civil collection. Affirms trial court dismissal of Bridges’ class action filed after her water was turned off for nonpayment, finding Bridges failed to exhaust the administrative remedies available at the Indiana Utilities Regulatory Commission. She had to seek those remedies before seeking judicial relief. Concludes that I.C. 8-1-2-68 through -70 grant the IURC exclusive jurisdiction over Bridges’ claim regardless of whether it is treated as a challenge to and request for reimbursement of the reconnect fee or as a challenge to the allegedly improper act of terminating her residential water service in a manner inconsistent with the terms of the tariff.
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Opinions Oct. 31, 2012

October 31, 2012
Indiana Court of Appeals
Robertson Fowler v. State of Indiana
49A05-1202-PC-68
Post conviction. Affirms denial of petition for post-conviction relief. Fowler received a benefit at the time he entered into his plea bargain, so he may not now challenge the sentence as illegal.
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Opinions Oct. 30, 2012

October 30, 2012
Indiana Supreme Court
Lisa J. Kane v. State of Indiana
30S04-1206-CR-372
Criminal. Reverses conviction of Class D felony receiving stolen property and remands for retrial. The trial court improperly instructed the jury on the mental state required to convict Kane.

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Opinions Oct. 29, 2012

October 29, 2012
Indiana Court of Appeals
Betty J. Angel v. Kent H. Powelson and Marjorie A. Powelson
82A04-1205-PL-292
Civil plenary. Affirms order granting part of the Powelsons’ summary judgment motion on Angel’s claims of reformation of a deed and adverse possession. The undisputed evidence shows that both Angel and the Powelsons were granted an easement to use the roadway and both used it for ingress and egress purposes. The evidence also supports Angel’s claim for reformation of a deed is barred by laches.
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Opinions Oct. 26, 2012

October 26, 2012
Indiana Court of Appeals
In Re the Involuntary Term. of the Parent-Child Rel. of A.P.: T.P. v. The Indiana Dept. of Child Services and Child Advocates, Inc. (NFP)
49A02-1201-JT-28
Juvenile termination of parental rights. Affirms termination of father’s parental rights.
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Opinions Oct. 25, 2012

October 25, 2012
Indiana Court of Appeals
State Farm Mutual Automobile Insurance Company v. Ken Nunn Law Office
49A02-1202-CT-68
Civil tort. Reverses denial of State Farm’s motion for summary judgment on the law office’s attempt to recover attorney fees and remands for further proceedings. The law office may not seek payment of a former client’s attorney fees from State Farm under an equitable attorney fee lien or based on a theory of quantum meruit.
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Opinions Oct. 24, 2012

October 24, 2012
Indiana Court of Appeals
Leslie Ann Grider v. State of Indiana
48A02-1112-CR-1156
Criminal. Reverses 19-year sentence following guilty pleas to two counts of Class C felony forgery, four counts of Class D felony theft, and two counts of Class D felony check fraud. The language of the plea agreement indicates the parties’ intention that the trial court would impose concurrent sentences on all counts regardless of the separate cause numbers. Orders Grider’s sentences to be concurrent for a total of eight years.
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Opinions Oct. 23, 2012

October 23, 2012
7th Circuit Court of Appeals
Planned Parenthood of Indiana, Inc., et al., v. Commissioner of the Indiana State Department of Health, et al.
11-2464
Civil. Reverses in part and affirms in part, affirming the district court injunction against I.C. 5-22-17-5.5(b) that bars state or federal funding for “any entity that performs abortions or maintains or operates a facility where abortions are performed.” The circuit court held that Medicaid grants individual rights under federal civil rights protections, but reversed the district court with regard to federal block grant funds, holding that no such actionable protection exists.
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Opinions Oct. 22, 2012

October 22, 2012
Indiana Court of Appeals
Wayne Evans v. Duke Energy Indiana, Inc. (NFP)
10A01-1111-PL-539
Civil plenary. Affirms trial court injunction prohibiting construction in a utility easement.
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Opinions Oct. 19, 2012

October 19, 2012
Indiana Court of Appeals
Rodney Killebrew II v. State of Indiana

34A02-1204-CR-303
Criminal. Reserves a conviction of possession of marijuana after concluding the trial court abused its discretion when it admitted evidence obtained at an illegal traffic stop. The court found the police officer had no grounds to stop the driver because the continuous use of a turn signal is not a traffic violation and the officer’s actions did not fall within his community caretaking function.
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Opinions Oct. 18, 2012

October 18, 2012
Indiana Court of Appeals
John A. Dugan v. State of Indiana
49A05-1202-PC-50
Post conviction. Reverses denial of petition for post-conviction relief. The court erred when it denied Dugan’s claim that Mills applied retroactively to his habitual offender enhancement. Remands for the court to vacate that enhancement.
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Opinions Oct. 17, 2012

October 17, 2012
Indiana Supreme Court
J.M. v. Review Board of the Indiana Dept. of Workforce Development and T.C.
Agency appeal. Finds the court may rely on a different statutory ground of a just cause finding than the one relied upon by the review board when, as here, the review board’s findings of fact clearly establish the alternate subsection’s applicability. Affirms the review board under Indiana Code section 22-4-15-1(d)(5), that J.M. refused to obey instructions, and was thus fired for just cause. Affirms denial of unemployment benefits.
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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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