Opinions

Opinions Jan. 20, 2012

January 20, 2012
Indiana Supreme Court
Indiana Dept. of Insurance, Indiana Patient's Compensation Fund v. Robin Everhart, Personal Rep. of the Estate of James K. Everhart, Jr.
84S01-1105-CV-282
Civil. Affirms award of statutory maximum of $1 million in excess damages from the Indiana Patient’s Compensation Fund to Robin Everhart. Does not see any grounds on which to reduce the trial court’s award of $1 million in excess damages, so deciding whether to extend or halt Cahoon’s advance would seem unnecessary at best. The fund was not entitled to a set-off.
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Opinions Jan. 19, 2012

January 19, 2012
Indiana Supreme Court
Chrysler Group, LLC v. Review Board of the Indiana Dept. of Workforce Development and T.A., et al.
93S02-1109-EX-565
Agency appeal. Affirms award of benefits to Chrysler employees offered a buyout. By Chrysler’s own words — to Congress and its own employees — Enhanced Voluntary Termination of Employment Program was part of a company-wide effort intended to avert twenty-nine manufacturing plant closures, twenty-two parts depot closures, and 53,000 layoffs. The board’s conclusion on this issue of ultimate fact was reasonable.
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Opinions Jan. 18, 2012

January 18, 2012
Indiana Supreme Court
A.T. v. State of Indiana
49S02-1201-JV-26
Juvenile. Reverses trial court’s dispositional order and remands with instructions to vacate that portion of its order committing A.T. to the Department of Correction until his 18th birthday. Because A.T. does not meet the criteria of Indiana Code 31-37-19-9(b), a determinate commitment under that section may not be imposed.
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Opinions Jan. 17, 2012

January 17, 2012
7th Circuit Court of Appeals
Lebamoff Enterprises v. Alex Hurley, in his official capacity as chairman of the Indiana Alcohol and Tobacco Commission
11-1362
Southern District of Indiana, Indianapolis Division
U.S. Judge Jane Magnus-Stinson
Civil. Affirms District judge’s grant of summary judgment for the state defendants, ruling against a Fort Wayne area wine retailer’s constitutional challenge to a state law that prevents retailers from shipping wine to consumers via a motor carrier. The appellate panel found that the state statute is not preempted by federal law. Judge David Hamilton issued a separate concurring opinion.
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Opinions Jan. 13, 2012

January 13, 2012
7th Circuit Court of Appeals
Kevin Harris v. Warrick County Sheriff’s Department
10-3706
U.S. District Court, Southern District of Indiana, Evansville Division, Chief Judge Richard Young.
Civil. Affirms District Court’s entry of summary judgment for the sheriff’s department in a case where a deputy sheriff’s probationary employment was terminated based on violations of standard operating procedures, failure to follow orders and insufficient commitment to the job. Harris’s circumstantial evidence of discrimination falls far short of supporting an inference that he was terminated because of his race.
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Opinions Jan. 12, 2012

January 12, 2012
7th Circuit Court of Appeals
United States of America v. Michael Redmond and Charles Avery Jr.
10-1947, 10-3914
U.S. District Court, Southern District of Indiana, Evansville Division, Chief Judge Richard L. Young.
Criminal. Affirms denial of Avery’s request to withdraw his guilty plea to crack cocaine distribution, the calculation of the crack cocaine quantity attributed to him and his sentence. Remands for the District Court to reconsider Redmond’s sentence following a guilty plea to conspiracy to possess with intent to distribute in excess of 50 grams of cocaine base in light of United States v. Corner.
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Opinions Jan. 11, 2012

January 11, 2012
Indiana Court of Appeals
Daniel E. Serban v. State of Indiana
02A03-1106-CR-285
Criminal. Declines to revise Serban’s 11-year sentence following guilty plea to Class C felony corrupt business influence and Class D felony theft. Serban failed to demonstrate his sentence is inappropriate, and his stealing from his clients injured not only them, but also the legal profession.
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Opinions Jan. 10, 2012

January 10, 2012
Indiana Supreme Court
Sarah Haag, Gordon Haag and Cathy Haag; Molly Kruger, William Kruger, III, and Katherine F. Kruger, et al. v. Mark Castro, The Indiana Youth Soccer Association, Virginia Surety Company, Inc., et al.
29S04-1102-CT-118
Civil tort. Affirms summary judgment in favor of Virginia Surety, the insurer of Indiana Youth Soccer Association, in a lawsuit brought by injured players seeking a declaration that the insurer provide coverage for an accident involving a Carmel youth soccer team while they were in Colorado. Because the van in which players were traveling when the accident occurred was not being used in the business of the association – a condition for coverage under the governing association’s business auto-insurance policy at issue – the injured players may not recover. Justice Dickson dissents; Justice David did not participate.
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Opinins Jan. 9, 2012

January 9, 2012
Indiana Court of Appeals
Javon L. Bonner v. State of Indiana (NFP)
20A03-1107-CR-330
Criminal. Affirms conviction of and sentence for Class A felony dealing in cocaine and convictions for Class C felony operating a vehicle with a lifetime suspension and Class A misdemeanor resisting law enforcement.
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Opinions Jan. 6, 2012

January 6, 2012
Indiana Court of Appeals
Michael Woodson v. State of Indiana
49A05-1106-CR-306
Criminal. Reverses two fraud convictions on grounds that trial court erred in denying a motion to suppress evidence, finding that the evidence was improperly seized after a search without adequate reasonable suspicion.
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Opinions Jan. 5, 2012

January 5, 2012
Indiana Court of Appeals
John C. Cole, Jr. v. State of Indiana (NFP)
49A05-1102-PC-67
Post conviction. Affirms denial of petition for post-conviction relief.
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Opinions Jan. 4, 2012

January 4, 2012
Indiana Court of Appeals
In the Matter of the Estate of Florian T. Latek; Nicholas G. Grapsas, et al. v. Gerald Ronneau
64A05-1103-ES-112
Estate, supervised. Affirms denial of Grapsas and Padezan’s challenge to the trial court order denying their motion to dismiss a petition for probate of will and for issuance of letters testamentary filed in the Porter Superior Court and a separate order admitting to probate the last will and testament of Florian Latek. Indiana adheres to the majority rule, and under that rule, the Illinois court’s denial of Latek’s will to probate because it failed to comply with that state’s statutory execution requirements has no effect on the subsequent admission and probate of Latek’s will in Indiana as it concerns the disposition of real property located in Indiana.
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Opinions Jan. 3, 2012

January 3, 2012
7th Circuit Court of Appeals
United States v. Jason Smith
Northern District of Indiana, South Bend Division. U.S. Judge Robert Miller, Jr.
11-2016
Criminal. Affirms District Court’s denial of motion to suppress evidence and motion for acquittal for a man convicted of being a felon in possession of a firearm, possessing crack cocaine with intent to deliver and possessing a firearm in furtherance of a drug transaction. The court rejected arguments that Jason Smith didn’t commit a traffic infraction and that the government constructively amended his indictment about when the traffic stop occurred.
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Opinions Dec. 30, 2011

December 30, 2011
Indiana Court of Appeals
Jeremy L. Peters v. State of Indiana
43A05-1103-CR-144
Criminal. Affirms conviction of and sentence for Class B felony unlawful possession of a firearm by a serious violent felon, holding that the use of Peters’ post-arrest, pre-Miranda silence during the state’s case-in-chief was not fundamental error because the evidence of his guilt was strong, the references to his silence were brief, and the references came amidst the narrative explaining the events after the crime.
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Opinions Dec. 29, 2011

December 29, 2011
Indiana Supreme Court
State of Indiana v. Economic Freedom Fund, FreeEats.com, Inc., Meridian Pacific, Inc., and John Does 3-10
07S00-1008-MI-411
Miscellaneous. Reverses trial court’s grant of preliminary injunction in favor of FreeEats, holding that the court erred in finding FreeEats had a reasonable likelihood of success on its claim that the live-operator provision of the Indiana Autodialer Law violates Article 1, Section 9 of the Indiana Constitution. Remands for further proceedings. Justice Frank Sullivan dissented, writing that the application of the live-operator requirement in the present case imposes a material burden on political speech in violation of Art. I, Section 9 of the Indiana Constitution, and that the application of this requirement violates the First Amendment to the United States Constitution.
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Opinions Dec. 28, 2011

December 28, 2011
7th Circuit Court of Appeals
United States of America v. George Pabey
11-2046
U.S. District Court, Northern District of Indiana, Hammond Division, Judge James T. Moody.
Criminal. Affirms Pabey’s convictions of conspiring to embezzle government funds and embezzling government funds and sentence of 60 months in prison, along with a $60,000 fine, $14,000 in restitution, and three years of supervised release. The District Court did not abuse its discretion by permitting the jury to receive the conscious avoidance instruction. The sentence enhancements were appropriate and the District Court provided adequate support for its upward departure of his sentence.
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Opinions Dec. 27, 2011

December 27, 2011
7th Circuit Court of Appeals
ATA Airlines Inc. v. Federal Express Corp.
11-1382, 11-1492
U.S. District Court, Southern District of Indiana, Indianapolis Division, Chief Judge Richard L. Young
Civil. Reverses $66 million jury award in favor of ATA against FedEx for breach of contract. ATA’s breach of contract claim should never have been permitted to go to trial because the letter agreement between the two parties was not an enforceable contract. In addition, ATA’s expert’s testimony on regression analysis never should have been allowed to be put before a jury.
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Opinions Dec. 22, 2011

December 22, 2011
7th Circuit Court of Appeals
M.B., by his parents and next friends, Damian Berns and Amy Berns v. Hamilton Southeastern Schools and Hamilton-Boone-Madison Special Services
10-3096
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge Tanya Walton Pratt.
Civil. Affirms summary judgment in favor of the schools on the Berns’ suit that the schools violated the Individuals with Disabilities Education Act and the provisions relating to special education in the Indiana Administrative Code by failing to provide M.B. with a free appropriate public education. There was nothing unreasonable about the determination by the hearing officer, the Board of Special Education Appeals, and the District Court in finding that M.B. was making progress under his individualized education program. The Berns are also not entitled to reimbursement for the costs to place M.B. in a learning center or for attorney fees.
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Opinions Dec. 21, 2011

December 21, 2011
Indiana Court of Appeals
Hans Maldonado v. State of Indiana (NFP)
29A05-1104-CR-231
Criminal. Affirms conviction of Class C misdemeanor operating a vehicle while intoxicated.
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Opinions Dec. 20, 2011

December 20, 2011
Indiana Court of Appeals
Christopher A. Bryant v. State of Indiana
45A03-1101-CR-11
Criminal. Affirms convictions of and sentences for two counts of Class A felony dealing in a narcotic drug, Class A misdemeanor resisting law enforcement, Class A misdemeanor marijuana possession and Bryant’s admission that he is a habitual substance offender, holding that his extensive arrest record renders harmless any error the trial court may have made.
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Opinions Dec. 19, 2011

December 19, 2011
Indiana Court of Appeals
Capitol Construction Services, Inc. v. Amy Gray, as Personal Rep. of the Estateof Clinton Gray and All One, Inc.
49A04-1005-CT-289
Civil tort. Affirms trial court’s grant of partial summary judgment in favor of Gray’s estate, holding that per terms of the contract, Capitol Construction was obligated to provide fall protection for all subcontractors.
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Opinions Dec. 16, 2011

December 16, 2011
Indiana Court of Appeals
Justin M. Corwin v. State of Indiana
79A04-1005-CR-296
Criminal. Reverses conviction of Class C felony possession of a controlled substance, holding that a police officer exceeded the limits of a search as defined by Terry v. Ohio, 392 U.S. 1, 30 (1968), and therefore, the evidence he obtained in the search should not have been admitted at trial.
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Opinions Dec. 15, 2011

December 15, 2011
7th Circuit Court of Appeals
Adrianna Brown, et al. v. Columbia Sussex Corp., et al.
10-3849
U.S. District Court, Northern District of Indiana, Hammond Division, Chief Judge Philip P. Simon.
Civil. Affirms dismissal of 53 of the 224 plaintiffs who had their civil rights and breach of contract claims dismissed because they continually missed both formal and informal deadlines. Holds that, in the context of a multi-party or multi-claim suit, a premature notice of appeal from the dismissal of a party or claim will ripen upon the entry of a belated Rule 54(b) judgment under Rule 4(a)(2) and FirsTier. The District Court was within its discretion to find that the appellants acted willfully, in bad faith, or with fault.
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Opinions Dec. 14, 2011

December 14, 2011
7th Circuit Court of Appeals
Susan Kellar v. Summit Seating Inc.
11-1221
U.S. District Court, Northern District of Indiana, South Bend Division, Magistrate Judge Christopher A. Nuechterlein
Civil. Affirms summary judgment for Summit Seating on Kellar’s lawsuit that she is entitled to overtime under the Fair Labor Standards Act for work performed before the official start of her work shift. Concludes that Summit did not know or have reason to know that Kellar was working before her shift.
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Opinions Dec. 13, 2011

December 13, 2011
Indiana Supreme Court
Steven Spangler and Heidi Brown v. Barbara Bechtel, Expectations Women's Health and
Childbearing Center, and St. Vincent Randolph Hospital

49S05-1012-CV-703
Civil. Reverses summary judgment in favor of Bechtel and the health and childbearing center. The parents’ separate actions seeking damages for emotional distress from experiencing the stillbirth of their child are not barred by the Indiana Child Wrongful Death Act or the Indiana Medical Malpractice Act. Remands for further proceedings.
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  1. I just wanted to point out that Congressman Jim Sensenbrenner, Senator Feinstein, former Senate majority leader Bill Frist, and former attorney general John Ashcroft are responsible for this rubbish. We need to keep a eye on these corrupt, arrogant, and incompetent fools.

  2. Well I guess our politicians have decided to give these idiot federal prosecutors unlimited power. Now if I guy bounces a fifty-dollar check, the U.S. attorney can intentionally wait for twenty-five years or so and have the check swabbed for DNA and file charges. These power hungry federal prosecutors now have unlimited power to mess with people. we can thank Wisconsin's Jim Sensenbrenner and Diane Feinstein, John Achcroft and Bill Frist for this one. Way to go, idiots.

  3. I wonder if the USSR had electronic voting machines that changed the ballot after it was cast? Oh well, at least we have a free media serving as vicious watchdog and exposing all of the rot in the system! (Insert rimshot)

  4. Jose, you are assuming those in power do not wish to be totalitarian. My experience has convinced me otherwise. Constitutionalists are nearly as rare as hens teeth among the powerbrokers "managing" us for The Glorious State. Oh, and your point is dead on, el correcta mundo. Keep the Founders’ (1791 & 1851) vision alive, my friend, even if most all others, and especially the ruling junta, chase only power and money (i.e. mammon)

  5. Hypocrisy in high places, absolute immunity handed out like Halloween treats (it is the stuff of which tyranny is made) and the belief that government agents are above the constitutions and cannot be held responsible for mere citizen is killing, perhaps has killed, The Republic. And yet those same power drunk statists just reel on down the hallway toward bureaucratic fascism.

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