Opinions Nov. 20, 2012

November 20, 2012
7th Circuit Court of Appeals
United States of America v. Lincoln Plowman
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.

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
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.

Opinions Nov. 16, 2012

November 16, 2012
Indiana Court of Appeals
Marybeth Lebo v. State of Indiana
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.

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
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.

Opinions Nov. 14, 2012

November 14, 2012
Indiana Court of Appeals
John Fox v. Nichter Construction Co., Inc.
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.

Opinions Nov. 13, 2012

November 13, 2012
Indiana Supreme Court
D.C. v. J.A.C.
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.

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
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.

Opinions Nov. 8, 2012

November 8, 2012
Indiana Court of Appeals
Jerome Michael Burton v. State of Indiana
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.

Opinions Nov. 7, 2012

November 7, 2012
Indiana Supreme Court
Michael Kucholick v. State of Indiana
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.

Opinions Nov. 6, 2012

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

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.

Opinions Nov. 5, 2012

November 5, 2012
Indiana Court of Appeals
Steven E. Miles, a/k/a Robert Dutcher v. State of Indiana (NFP)
Post conviction. Affirms denial of petition for post-conviction relief.

Opinions Nov. 2, 2012

November 2, 2012
Indiana Court of Appeals
Joshua A. Bostic v. State of Indiana
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.

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
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.

Opinions Oct. 31, 2012

October 31, 2012
Indiana Court of Appeals
Robertson Fowler v. State of Indiana
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.

Opinions Oct. 30, 2012

October 30, 2012
Indiana Supreme Court
Lisa J. Kane v. State of Indiana
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.


Opinions Oct. 29, 2012

October 29, 2012
Indiana Court of Appeals
Betty J. Angel v. Kent H. Powelson and Marjorie A. Powelson
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.

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)
Juvenile termination of parental rights. Affirms termination of father’s parental rights.

Opinions Oct. 25, 2012

October 25, 2012
Indiana Court of Appeals
State Farm Mutual Automobile Insurance Company v. Ken Nunn Law Office
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.

Opinions Oct. 24, 2012

October 24, 2012
Indiana Court of Appeals
Leslie Ann Grider v. State of Indiana
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.

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.
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.

Opinions Oct. 22, 2012

October 22, 2012
Indiana Court of Appeals
Wayne Evans v. Duke Energy Indiana, Inc. (NFP)
Civil plenary. Affirms trial court injunction prohibiting construction in a utility easement.

Opinions Oct. 19, 2012

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

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.

Opinions Oct. 18, 2012

October 18, 2012
Indiana Court of Appeals
John A. Dugan v. State of Indiana
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.

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.

Opinions Oct. 16, 2012

October 16, 2012
Indiana Court of Appeals
Charles Mitchell v. State of Indiana
Criminal. Affirms conviction and sentence for Class D felony theft. The evidence is sufficient to show Mitchell and the other defendants knowingly exerted unauthorized control over the apartment complex’s water heater with the intent to deprive the apartments of any part of its value or use. The advisory sentence imposed, with all but 60 days suspended to probation, was not inappropriate.
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  1. So the prosecutor made an error and the defendants get a full remedy. Just one short paragraph to undo the harm of the erroneous prosecution. Wow. Just wow.

  2. Wake up!!!! Lawyers are useless!! it makes no difference in any way to speak about what is important!! Just dont tell your plans to the "SELFRIGHTEOUS ARROGANT JERKS!! WHO THINK THEY ARE BETTER THAN ANOTHER MAN/WOMAN!!!!!!

  3. Looks like you dont understand Democracy, Civilized Society does not cut a thiefs hands off, becouse now he cant steal or write or feed himself or learn !!! You deserve to be over punished, Many men are mistreated hurt in many ways before a breaking point happens! grow up !!!

  4. It was all that kept us from tyranny. So sad that so few among the elite cared enough to guard the sacred trust. Nobody has a more sacred obligation to obey the law than those who make the law. Sophocles No man is above the law and no man is below it; nor do we ask any man's permission when we ask him to obey it. Obedience to the law is demanded as a right; not asked as a favor. Theodore Roosevelt That was the ideal ... here is the Hoosier reality: The King can do no wrong. Legal maxim From the Latin 'Rex non potest peccare'. When the President does it, that means that it is not illegal. Richard Nixon

  5. So men who think they are girls at heart can use the lady's potty? Usually the longer line is for the women's loo, so, the ladies may be the ones to experience temporary gender dysphoria, who knows? Is it ok to joke about his or is that hate? I may need a brainwash too, hey! I may just object to my own comment, later, if I get myself properly "oriented"