Opinions

Opinions Sept. 20, 2010

September 20, 2010
Indiana Court of Appeals
Obed Kalwitz, Jr., et al. v. Eugene Kalwitz, et al.
46A03-0912-CV-574
Civil. Affirms small claims judgment in favor of siblings Eugene Kalwitz and Sharon Greiger in Obed Kalwitz Jr.’s suit alleging the siblings stole items from land that now belong to the siblings. Affirms ruling on counterclaim for $1,750 compensatory damages for abuse of process, $2,750 in punitive damages, and $900 in attorney’s fees. Obed and Rolene’s request for a change of judge was untimely, and their claim is barred by res judicata. Remands to the small claims court for a determination of the amount of appellate attorney’s fees and costs to which Eugene and Sharon are entitled.
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Opinions Sept. 17, 2010

September 17, 2010
Indiana Supreme Court
In the Matter of Kenneth E. Lauter
55S00-0906-DI-267
Discipline. A per curiam decision publicly reprimands attorney Kenneth E. Lauter of Morgan County because he didn’t indicate to the client what the additional retainer should be or how it would be determined, thus violating Indiana Professional Conduct Rules 1.5 (b) and (c).
Justices Brent Dickson and Robert Rucker dissented, believing that the Indiana Supreme Court Disciplinary Commission did not prove a charged violation by clear and convincing evidence and that the hearing officer correctly found no violation and recommended a finding in favor of Lauter.
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Opinions Sept. 16, 2010

September 16, 2010
Indiana Supreme Court

Foundations of East Chicago, Inc., Successor by Merger to East Chicago Community Development Foundation, Inc. and Twin City Education Foundation, Inc. v. City of East Chicago
No. 49S02-0908-CV-00383
Civil. Justices granted a rehearing petition, holding that the city didn’t follow Indiana Appellate Rule 65(E) and was premature in filing a motion at the trial court level before a previous appellate ruling was certified. Justices found the trial court correctly denied the city’s request, and it kept intact its original opinion from May.

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Opinions Sept. 15, 2010

September 15, 2010
Indiana Court of Appeals
Alexander Gatzimos, M.D. v. Boone County and State of Indiana
06A05-0911-CV-664
Civil. Grants the state’s motion to dismiss Dr. Gatzimos’ appeal of the trial court order denying his petition for expungement. Remands to the trial court to allow Gatzimos the opportunity to present admissible evidence as to whether his charges were dismissed because of mistaken identity; no offense was actually committed; or there was an absence of probable cause.
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Opinions Sept. 14, 2010

September 14, 2010

Indiana Court of Appeals
Gerald L. Wilkerson v. State of Indiana
26A01-0909-CR-457
Criminal. Affirms trial court’s denial of motion to suppress. Compliance with the Pirtle requirement (Pirtle v. State, 323 N.E.2d 634 (Ind. 1975)) was unnecessary and consent to pat-down search was valid.

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Opinions Sept. 13, 2010

September 13, 2010


Indiana Court of Appeals
Kevin Moncrief v. State of Indiana (NFP)
49A05-1004-PC-245
Post conviction. Affirms denial of petition for post-conviction relief.

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Opinions Sept. 10, 2010

September 10, 2010
7th Circuit Court of Appeals
Joseph Finch, David E. Hensley, and Peter W. Mungovan v. Bart Peterson, individually and in his official capacity, et al.
09-2676
U.S. District Court, Southern District of Indiana, Indianapolis Division, Magistrate Judge Debra McVicker Lynch.
Civil. Affirms denial of the city officials’ motion for judgment on the pleadings in a suit filed by three white officers alleging discrimination in promotions. The 1978 consent decree between the Indianapolis Police Department and the U.S. Department of Justice does not operate to confer qualified immunity on city officials who were involved in making the challenged promotions. Nothing in the decree required them to take race into consideration when making promotions.
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Opinions Sept. 9, 2010

September 9, 2010
Indiana Supreme Court
Matter of the Estate of Harry L. Rickert
18S04-1002-CV-118
Civil. Reverses judgment in favor of Taylor, who was Rickert’s power of attorney, that she receive the money from accounts in which she was a joint holder. The presumption is that Taylor’s use of her power of attorney to benefit herself made those accounts invalid, and she failed to overcome that presumption to allow her to inherit the money. Remands with direction to order restoration to the estate of bank accounts owned of record by Rickert and Taylor that were created through use of Taylor’s power of attorney from Rickert and lacking any support documentation indicating participation by Rickert.
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Opinions Sept. 8, 2010

September 8, 2010
7th Circuit Court of Appeals
Letecia D. Brown v. Automotive Components Holdings, LLC and Ford Motor Co.
09-1641
U.S. District Court, Southern District of Indiana, Indianapolis Division, Chief Judge Richard L. Young.
Civil. Affirms summary judgment dismissing Brown’s FMLA claim following her termination from Ford. The undisputed facts show Brown was absent without leave after failing to give proper FMLA notice for an extension of a previously requested leave period.
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Opinions Sept. 7, 2010

September 7, 2010
Indiana Court of Appeals
David Hatter, et al. v. Pierce Manufacturing, Inc.
49A02-0907-CV-659
Civil. Affirms jury trial and verdict in favor of Pierce Manufacturing in the Hatters’ product liability action. Hatter failed to exhaust one of his peremptory challenges and has not shown both of his challenges for cause were improperly denied. The trial court did not abuse its discretion in the giving of jury instructions or in excluding evidence and did not err by denying Hatter’s partial motion for judgment on the evidence.
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Opinions Sept. 3, 2010

September 3, 2010

7th Circuit Court of Appeals
Trent L. Chapin v. Fort-Rohr Motors Inc.
09-1347
U.S. District Court, Northern District of Indiana, Fort Wayne Division, Judge Theresa L. Springmann.
Civil. Reverses denial of Fort-Rohr’s motion for judgment as a matter of law after a jury found in Chapin’s favor in his retaliation suit. Fort-Rohr was entitled to judgment as a matter of law because Chapin did not produce sufficient evidence to support an actual or constructive discharge.

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Opinions Sept. 2, 2010

September 2, 2010

Indiana Court of Appeals
Conwell Construction v. Abbey Road Development, LLC, et al. (NFP)
49A05-0912-CV-741
Civil. Affirms trial court grant of permission to amend its counterclaim to assert a claim for actual damages.

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Opinions Aug. 31, 2010

August 31, 2010
7th Circuit Court of Appeals
Hayes Lemmerz International, Inc. v. ACE American Insurance Co.
10-1073
U.S. District Court, Northern District of Indiana, South Bend Division, Chief Judge Philip P. Simon.
Civil. Affirms dismissal of diversity suit against insurer. ACE had no duty to provide Hayes Lemmerz International’s lawyers with legal advice and didn’t breach its duty to defend by failing to advise HLI that its law firm wasn’t defending the suit properly.
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Opinions Aug. 30, 2010

August 30, 2010
7th Circuit Court of Appeals
United States of America v. Jennifer K. Howard
09-3840
U.S. District Court, Northern District of Indiana, Fort Wayne Division, Judge Theresa L. Springmann.
Criminal. Affirms convictions of wire fraud and mail fraud. Holds that even if an indictment names particular victims, the government need not prove intent to harm those named victims. The government proved that Howard intended to defraud the scheme’s victims, and such intent was established by examining the circumstances of the scheme, not by who was specifically named in the indictment.
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Opinions Aug. 27, 2010

August 27, 2010

Indiana Court of Appeals
Brian S. Adcock v. State of Indiana
47A01-0912-CR-591
Criminal. Affirms convictions of two counts of Class A felony child molesting, two counts of Class B felony sexual misconduct with a minor, and finding that Adcock is a repeat sexual offender. The trial court didn’t err in permitting the prosecutor to analogize the standard of proof to a jigsaw puzzle during voir dire or in allowing the state to amend the repeat sexual offender notice.

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Opinions Aug. 26, 2010

August 26, 2010
7th Circuit Court of Appeals
John M. Stephenson v. Bill Wilson, Superintendent of Indiana State Prison
09-2924
U.S. District Court, Northern District of Indiana, Judge Theresa L. Springmann.
Civil. Stephenson failed to carry his burden of proving prejudice, even on the premise that his counsel should have objected to the stun belt. The question of prejudice from Stephenson being required to wear the stun belt at the penalty hearing will require further consideration of the District Court on remand.
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Opinions Aug. 25, 2010

August 25, 2010
7th Circuit Court of Appeals
United States of America v. Jorge Quintero, a/k/a Samuel Munoz, and Claudia Andrade Martinez
09-2715, 09-2788
U.S. District Court, Northern District of Indiana, Hammond Division, Judges Rudy Lozano and James T. Moody.
Criminal. Dismisses Quintero’s appeal of his sentence after pleading guilty to charges related to a bank robbery and unlawful entering on waiver grounds. Affirms Martinez’s conviction and sentence for bank robbery and unlawfully remaining in the U.S. The jury instructions given at Martinez’s trial regarding aiding and abetting were correct statements of the law.
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Opinions Aug. 24, 2010

August 24, 2010

Indiana Court of Appeals
Monty Rader v. State of Indiana
49A02-0907-CR-691
Criminal. Affirms denial of motion to suppress. The IP address used to log in to the monty20064 account was, on the dates in question, assigned to Rader’s home in Greencastle. Rejects Rader’s request that the court follow the precedent of the New Jersey Supreme Court and ignore the holding of the Indiana Supreme Court with regard to the issuance of investigatory subpoenas to third parties.

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Opinions Aug. 23, 2010

August 23, 2010
Indiana Court of Appeals
Arthur Balls v. State of Indiana (NFP)
49A02-1001-CR-12
Criminal. Affirms conviction of and sentence for Class C felony battery and finding Balls is a habitual offender.
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Opinions Aug. 20, 2010

August 20, 2010

7th Circuit Court of Appeals

Torrey Bauer, David Certo, and Indiana Right to Life, Inc. v. Randall T. Shepard, et al.
09-2963
U.S. District Court, Northern District of Indiana, Fort Wayne Division. Judge Theresa L. Springmann.
Civil. Affirms District court’s ruling that the state’s judicial canons are constitutional regarding whether judges can make public statements regarding controversial issues. The opinion recognizes a split among Circuits throughout the country on the issue. Also finds that a portion of the challenge involving the pre-2009 conduct code is unripe, rather than moot as the District court had found.

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Opinions Aug. 19, 2010

August 19, 2010

Indiana Court of Appeals
Kari Heyser, et al. v. Noble Roman's, Inc., et al.
29A04-1002-PL-71
Civil plenary. Affirms partial summary judgment for Noble Roman’s Inc. and other defendants on Heyser and other franchisees’ claim for constructive fraud. The admission by the franchisees’ attorney that their fraud claims against the banks were based solely on allegedly fraudulent representations by Noble Roman’s, with whom the banks allegedly acted in conspiracy; and the franchisees were alleging actual fraud, not constructive fraud.

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Opinions Aug. 18, 2010

August 18, 2010

7th Circuit Court of Appeals
United States of America v. Anna LaFaive, also known as Phyllis Click
09-2344
U.S. District Court, Northern District of Indiana, Fort Wayne Division, Judge Theresa L. Springmann.
Criminal. Affirms conviction of and sentence for two counts of bank fraud and two counts of aggravated identity theft. 18 U.S.C. Section1028A criminalizes the use of both a living or deceased person’s identification. The District Court did not plainly err in calculating or imposing her sentence.

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Opinions Aug. 17, 2010

August 17, 2010
Indiana Court of Appeals
Cullen Davis Walker v. State of Indiana
71A03-1003-CR-115
Criminal. Affirms Walker’s convictions of burglary, robbery, criminal confinement – all as Class B felonies, and possession of cocaine as a Class C felony. Also affirms his sentence of 56 years. Walker argued his burglary and criminal confinement convictions should be vacated pursuant to the continuing crime doctrine because his offenses of were all part of the same continuing crime since they occurred in a short period of time and facilitated his sole purpose of taking things from people at one house. The court ruled each offense was a distinct chargeable crime. Remands with instructions to correct clerical errors in the amended judgment and chronological case summary.
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Opinions Aug. 16, 2010

August 16, 2010

Indiana Court of Appeals
Gail M. Flatow and Flatow Comer, LLP v. Dwane Ingalls
49A02-0910-CV-994
Civil. Reverses denial of Flatow and Flatow Comer’s motion for summary judgment in Ingalls’ suit for legal malpractice. There is no designated evidence in the malpractice litigation to show the result of Ingalls’ partial motion for summary judgment would have been any different had a reply been filed. As a matter of law, the Flatow defendants had no duty to provide the services Ingalls claims they were negligent in failing to provide.

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Opinions Aug. 13, 2010

August 13, 2010

7th Circuit Court of Appeals
Barbara J. Castile v. Michael J. Astrue, Commissioner of the Social Security Administration
09-3917
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge David Hamilton.
Civil. Affirms denial of Castile’s numerous claims for obtaining disability insurance and disability widow’s benefits. There was substantial evidence to support the administrative law judge’s conclusion that Castile’s chronic fatigue syndrome didn’t render her disabled. The ALJ thoroughly examined the evidence and articulated his findings and the District Court didn’t err in upholding the ALJ’s credibility determinations.

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