Opinions

Opinions March 7, 2012

March 7, 2012
Indiana Court of Appeals
Angela C. Garrett v. State of Indiana
32A05-1105-CR-239
Criminal. Reverses Class A felony conviction of dealing methamphetamine, finding that the trial court should have instructed the jury on a lesser-included offense of possession of methamphetamine. Remands for a new trial.
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Opinions March 6, 2012

March 6, 2012
Indiana Supreme Court
Mark J. Thatcher v. City of Kokomo, et al.
94S00-1109-CQ-570
Certified question. Indiana Code 36-8-4-7(a) applies to a member of the 1977 Fund who is receiving disability benefits and who has been determined to have been recovered pursuant to 35 Indiana Administrative Code 2-5-5(c). And the time period during which a person receives disability benefits under Indiana Code 36-8-8-12(e) does not count toward “years of service” as that term is used in Indiana Code 36-8-4-7(a).
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Opinions March 5, 2012

March 5, 2012
Indiana Court of Appeals
Brandy L. Walczak v. Labor Works-Fort Wayne, LLC, d/b/a Labor Works
02A04-1109-PL-509
Civil plenary. Reverses summary judgment for Labor Works-Fort Wayne in Walczak’s suit for unpaid wages. Concludes that the matter must be first submitted to the Department of Labor for resolution, so the trial court lacked subject matter jurisdiction over the claims until the DOL had made a determination. Remands with instructions to dismiss the complaint.
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Opinions March 2, 2012

March 2, 2012
Indiana Court of Appeals
Brian Scott Hartman v. State of Indiana
68A01-1106-CR-264
Criminal. Affirms the denial of Hartman’s motion to suppress a statement he made to the police regarding involvement in the death of his father. Hartman initiated further communication by asking whether the search warrant had been served and whether anything had been found, and then told the detective that he wanted to speak with him.
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Opinions March 1, 2012

March 1, 2012
Indiana Court of Appeals
Jeremy K. Warriner v. DC Marshall Jeep a/k/a DC Marshall, Inc.
49A02-1106-CT-489
Civil tort.  Affirms summary judgment for the dealership in Warriner’s suit alleging the dealership is strictly liable for the injuries he sustained in a car accident under the Indiana Products Liability Act and liable for negligent marketing of an unsafe product. Holds a manufacturer’s discharge in bankruptcy does not prevent a trial court from holding jurisdiction over that manufacturer. Judge Bailey concurs in part and concurs in result in part.
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Opinions Feb. 29, 2012

February 29, 2012
Indiana Court of Appeals
Joseph A. Davis v. Herbert Simon and Bui Simon
49A04-1101-CT-5
Civil tort. Reverses denial of Davis’ motion to dismiss for lack of personal jurisdiction a complaint filed by the Simons alleging defamation and false light publicity. Davis’ act of responding to the questions of a reporter who initiated the contact with Davis regarding a California lawsuit, in which he is serving as a plaintiff’s attorney, was not done with the purpose of expressly targeting a resident of the forum state. Judge Kirsch dissents.
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Opinions Feb. 28, 2012

February 28, 2012
Indiana Court of Appeals
Jacob Key, Ted J. Brown and Sally A. Brown v. Dewayne Hamilton
48A02-1007-CT-812
Civil tort. Affirms trial court’s grant of summary judgment in favor of Hamilton, holding that Key – by waving into traffic a driver who caused a crash with Hamilton – assumed a duty of care to a third-party motorist because the signaled driver reasonably expected that traffic was clear.
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Opinions Feb. 27, 2012

February 27, 2012
Indiana Court of Appeals
Arc Construction Management, LLC, and Alan Muncy v. John Zelenak and Cecilia Zelenak
10A01-1106-CT-247
Civil Tort. Affirms and remands case involving a home construction lawsuit, finding that trial court didn’t err in denying summary judgment on the former homeowners’ claim of breach of implied warranty of habitability.
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Opinions Feb. 24, 2012

February 24, 2012
Indiana Court of Appeals
CFS, LLC and Charles Blackwelder v. Bank of America, Successor in Interest to LaSalle Bank Midwest National Association

29A02-1105-MF-436
Mortgage foreclosure.  Affirms trial court’s granting of summary judgment in favor of Bank of America, finding that the bank established no genuine issue of material fact existed about whether a successor bank surviving after a merger could enforce the note and mortgage of the predecessor.

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Opinions Feb. 23, 2012

February 23, 2012
Indiana Court of Appeals
Eriberto Quiroz v. State of Indiana
49A02-1107-CR-577
Criminal. Reverses Quiroz’s conviction of Class C felony child molesting because that conviction along with a Class A felony child molesting conviction constitutes double jeopardy as the same evidence supports both convictions. Remands for the trial court to vacate the Class C felony conviction. The trial court did not commit fundamental error in including in the jury instructions a copy of the charging information that included the counts against Quiroz that had previously been dismissed.
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Opinions Feb. 22, 2012

February 22, 2012
Indiana Supreme Court
Jerrme Cartwright v. State of Indiana
82S01-1109-CR-564
Criminal. Affirms convictions of attempted battery and unlawful possession of a firearm by a serious violent felon. Finds no evidence of pretext in the state’s strike of venireperson Bard, the only African-American.
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Opinions Feb. 21, 2012

February 21, 2012
Indiana Court of Appeals
Herbert Yanez v. State of Indiana
49A02-1104-CR-362
Criminal. Reverses conviction of possession of marijuana as a Class A misdemeanor and remands for further proceedings. There was no evidence presented as to why Yanez was stopped and the evidence presented didn’t establish the reasonableness of the state’s actions. Judge Barnes concurs in result in a separate opinion.
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Opinions Feb. 20, 2012

February 20, 2012
Indiana Court of Appeals
Curtis Cole v. Review Board of the Indiana Dept. of Workforce Development, and Owen County (NFP)
93A02-1106-EX-510
Agency appeal. Affirms denial of unemployment benefits.
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Opinions Feb. 17, 2012

February 17, 2012
7th Circuit Court of Appeals
United States of America v. Samuel T. Henzel
11-2293
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge Tanya Walton Pratt.
Criminal. Affirms 135-month sentence imposed following guilty plea to traveling across state lines with the intent to engage in illicit sexual conduct. The District Court miscalculated the imprisonment range favorably to Henzel, and the sentence imposed is actually within the correctly calculated range.
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Opinions Feb. 16, 2012

February 16, 2012
Indiana Supreme Court
Richmond State Hospital and All Other Similarly Situated State Institutions and Agencies v. Paula Brattain, et al.
49S02-1106-CV-327
Civil. Holds that the back pay recovery of the non-merit employees of the state should be limited in the same manner as the Court of Appeals has set forth for that of merit employees of the state. Remands with instructions to recalculate the non-merit employees’ back pay judgment based upon the time period beginning either 10 days before the complaint or 10 days before the filing of their grievances until the day the state eliminated its split-pay system, and summarily affirms the COA in all other respects.
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Opinions Feb. 15, 2012

February 15, 2012
Indiana Court of Appeals
Pierre Freeman v. State of Indiana (NFP)
15A01-1107-CR-341
Criminal. Affirms revocation of probation.
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Opinions Feb. 14, 2012

February 14, 2012
Indiana Court of Appeals
In Re: The Marriage of K.Z. and M.H.
43A05-1107-DR-436
Domestic relation. Affirms trial court’s order modifying dissolution decree to reflect that a child of the marriage between K.Z. and M.H. had been born after their divorce. Citing mother’s statement in the original dissolution decree, holds that no question of paternity exists, and therefore, the court did not abuse its discretion in modifying the dissolution decree at the father’s request.
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Opinions Feb. 13, 2012

February 13, 2012
Indiana Court of Appeals
Bloomington Magazine, Inc. v. Mark Kiang d/b/a Mikado Restaurant, Sunbeam Corp., and Truffles 56 Degrees Incorporated
53A05-1012-SC-790
Civil. Reverses trial court’s order denying a motion to set aside judgment in favor of Mikado Restaurant Sunbeam Corp. and Truffles 56 Degrees. Finds that the trial court abused its discretion in denying a motion for the judge’s recusal and request for a special judge in light of one of the attorney’s past involvement as the judge’s 2008 election campaign chair. Remands the case for proceedings consistent with this appellate decision.
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Opinions Feb. 10, 2012

February 10, 2012
Indiana Court of Appeals
Commissioner of the Indiana Dept. of Insurance v. Tim Black, as Husband and Personal Rep. of Kay Black, Deceased
64A05-1104-CT-240
Civil tort. Reverses trial court’s denial of commissioner’s motion to dismiss but agrees with Black that because additional documentation had accompanied the commissioner’s motion, it should be treated as a motion for summary judgment, pursuant to Trial Rule 56. Holds that Black did not provide sufficient evidence of an agreement and a genuine issue of material fact exists. Remands for further proceedings. 
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Opinions Feb. 9, 2012

February 9, 2012
7th Circuit Court of Appeals
Sammie L. Booker-El v. Superintendent, Indiana State Prison and all agents
10-1490
U.S. District Court, Northern District of Indiana, South Bend Division, Judge Robert L. Miller Jr.
Civil. Affirms District Court’s dismissal of Booker-El’s complaint that prison officials misappropriated funds intended by statute to be used for the inmates’ benefit without due process of law. Booker-El has no property interest in the inmates’ recreation fund.
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Opinions Feb. 8, 2012

February 8, 2012
Indiana Court of Appeals
Bei Bei Shuai v. State of Indiana
49A02-1106-CR-486
Criminal. Reverses trial courts’ denial of Shuai’s request to be released on bail. The defense presented sufficient evidence to rebut the presumption that Shuai is guilty of murder of her child. Remands for a determination of bail. Declines to adopt Shuai’s argument that the murder statute is ambiguous as applied to her. Affirms denial of her motion to dismiss. Judge Riley concurs in part and dissents in part.

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Opinions Feb. 7, 2012

February 7, 2012
7th Circuit Court of Appeals
Roy Wirtz, et al. v. City of South Bend
11-3811
U.S. District Court, Northern District of Indiana, South Bend Division, Judge Robert L. Miller Jr.
Civil. Affirms dismissal of the city’s motion to appeal a case arising under the First Amendment’s establishment clause. Although the city is challenging two appealable orders, the challenge is untimely. The appeal is also moot.
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Opinions Feb. 6, 2012

February 6, 2012
Indiana Court of Appeals
Continental Electric Co., Inc. v. Gary Community School Corporation (NFP)
45A05-1105-PL-247
Civil plenary. Affirms denial of Continental Electric’s request for a preliminary injunction.
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Opinions Feb. 3, 2012

February 3, 2012
7th Circuit Court of Appeals
Larry Davis v. Kris Ockomon, et al.
10-2589
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge William T. Lawrence.
Civil. Affirms finding that the position of senior humane officer for the city of Anderson was a policymaking position and therefore Davis could be dismissed for political reasons. City ordinances authorized the senior humane officer to exercise policymaking discretion.
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Opinions Feb. 2, 2012

February 2, 2012
7th Circuit Court of Appeals
Emergency Services Billing Corp. Inc., individually (and as agent for) agent of Westville Volunteer Fire Department v. Allstate Insurance Co., et al.
11-2381
U.S. District Court, Northern District of Indiana, Hammond Division at Lafayette, Judge John E. DeGuilio.
Civil. Affirms dismissal of ESBC’s suit seeking individuals involved in car accidents are responsible for the clean-up costs of hazardous substances released after accidents. A motor vehicle owned for personal use is a “consumer product in consumer use” under the Comprehensive Environmental Response, Compensation and Liability Act, and thus owners/operators of personal motor vehicles are exempt from CERCLA’s response-cost provisions.
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  1. "Am I bugging you? I don't mean to bug ya." If what I wrote below is too much social philosophy for Indiana attorneys, just take ten this vacay to watch The Lego Movie with kiddies and sing along where appropriate: https://www.youtube.com/watch?v=etzMjoH0rJw

  2. I've got some free speech to share here about who is at work via the cat's paw of the ACLU stamping out Christian observances.... 2 Thessalonians chap 2: "And we also thank God continually because, when you received the word of God, which you heard from us, you accepted it not as a human word, but as it actually is, the word of God, which is indeed at work in you who believe. For you, brothers and sisters, became imitators of God’s churches in Judea, which are in Christ Jesus: You suffered from your own people the same things those churches suffered from the Jews who killed the Lord Jesus and the prophets and also drove us out. They displease God and are hostile to everyone in their effort to keep us from speaking to the Gentiles so that they may be saved. In this way they always heap up their sins to the limit. The wrath of God has come upon them at last."

  3. Did someone not tell people who have access to the Chevy Volts that it has a gas engine and will run just like a normal car? The batteries give the Volt approximately a 40 mile range, but after that the gas engine will propel the vehicle either directly through the transmission like any other car, or gas engine recharges the batteries depending on the conditions.

  4. Catholic, Lutheran, even the Baptists nuzzling the wolf! http://www.judicialwatch.org/press-room/press-releases/judicial-watch-documents-reveal-obama-hhs-paid-baptist-children-family-services-182129786-four-months-housing-illegal-alien-children/ YET where is the Progressivist outcry? Silent. I wonder why?

  5. Thank you, Honorable Ladies, and thank you, TIL, for this interesting interview. The most interesting question was the last one, which drew the least response. Could it be that NFP stamps are a threat to the very foundation of our common law American legal tradition, a throwback to the continental system that facilitated differing standards of justice? A throwback to Star Chamber’s protection of the landed gentry? If TIL ever again interviews this same panel, I would recommend inviting one known for voicing socio-legal dissent for the masses, maybe Welch, maybe Ogden, maybe our own John Smith? As demographics shift and our social cohesion precipitously drops, a consistent judicial core will become more and more important so that Justice and Equal Protection and Due Process are yet guiding stars. If those stars fall from our collective social horizon (and can they be seen even now through the haze of NFP opinions?) then what glue other than more NFP decisions and TRO’s and executive orders -- all backed by more and more lethally armed praetorians – will prop up our government institutions? And if and when we do arrive at such an end … will any then dare call that tyranny? Or will the cost of such dissent be too high to justify?

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