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Opinions Aug. 3, 2012

August 3, 2012
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7th Circuit Court of Appeals
BKCAP, LLC, GRAYCAP, LLC, AND SWCAP, LLC v. Captec Franchise Trust 2000-1
11-2928, 11-3378
U.S. District Court, Northern District of Indiana, South Bend Division. Magistrate Judge Roger B. Cosbey.
Civil. Affirms ruling in favor of the borrowers’ interpretation of the prepayment premium requirements in 12 loans involving restaurants and award of prejudgment interest to the borrowers. The borrowers’ position was supported by the evidence presented at trial, and the lender is not entitled to attorney fees.

Daryl Scruggs v. Carrier Corp.
11-3420
U.S. District Court, Southern District of Indiana, Indianapolis Division. Judge Sarah Evans Barker.
Civil. Affirms summary judgment in favor of Carrier in Scruggs’ suit for interference and retaliation under the Family and Medical Leave Act after Carrier fired Scruggs for abusing FMLA leave. Carrier has shown that it held an “honest suspicion” that Scruggs was abusing his FMLA leave.

Indiana Supreme Court and Indiana Tax Court posted no opinions at IL deadline.

Indiana Court of Appeals

Veolia Water Indianapolis LLC, City of Indianapolis Dept. of Waterworks, and City of Indianapolis v. National Trust Ins. Co. and FCCI Ins. Co. a/s/o Ultra Steak, Inc. d/b/a Texas Roadhouse
49A04-1108-PL-412
Civil plenary. Reverses partial denial of city’s motion to dismiss and Veolia’s motion for judgment on the pleadings. Both defendants are entitled to common law immunity because the common law rule turns on the purpose for which the water is being used, not the underlying cause of the lack of water. The explicit language of the city’s contract with Veolia disavows any intent to create third-party beneficiaries.

Clair Wilson v. State of Indiana (NFP)
49A02-1110-CR-914
Criminal. Affirms four convictions of Class B felony sexual misconduct with a minor following a jury trial.

Michael Nance v. State of Indiana (NFP)
49A02-1112-CR-1144
Criminal. Affirms conviction of Class D felony theft following a jury trial.

Michael L. Gaebler v. Janice (Gaebler) Bankert-Countryman (NFP)
49A04-1111-DR-630
Domestic relation. Affirms dissolution court’s order modifying Gaebler’s child support obligation for his two minor children.
 

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  1. The sad thing is that no fish were thrown overboard The "greenhorn" who had never fished before those 5 days was interrogated for over 4 hours by 5 officers until his statement was illicited, "I don't want to go to prison....." The truth is that these fish were measured frozen off shore and thawed on shore. The FWC (state) officer did not know fish shrink, so the only reason that these fish could be bigger was a swap. There is no difference between a 19 1/2 fish or 19 3/4 fish, short fish is short fish, the ticket was written. In addition the FWC officer testified at trial, he does not measure fish in accordance with federal law. There was a document prepared by the FWC expert that said yes, fish shrink and if these had been measured correctly they averaged over 20 inches (offshore frozen). This was a smoke and mirror prosecution.

  2. I love this, Dave! Many congrats to you! We've come a long way from studying for the bar together! :)

  3. This outbreak illustrates the absurdity of the extreme positions taken by today's liberalism, specifically individualism and the modern cult of endless personal "freedom." Ebola reminds us that at some point the person's own "freedom" to do this and that comes into contact with the needs of the common good and "freedom" must be curtailed. This is not rocket science, except, today there is nonstop propaganda elevating individual preferences over the common good, so some pundits have a hard time fathoming the obvious necessity of quarantine in some situations....or even NATIONAL BORDERS...propagandists have also amazingly used this as another chance to accuse Western nations of "racism" which is preposterous and offensive. So one the one hand the idolatry of individualism has to stop and on the other hand facts people don't like that intersect with race-- remain facts nonetheless. People who respond to facts over propaganda do better in the long run. We call it Truth. Sometimes it seems hard to find.

  4. It would be hard not to feel the Kramers' anguish. But Catholic Charities, by definition, performed due diligence and held to the statutory standard of care. No good can come from punishing them for doing their duty. Should Indiana wish to change its laws regarding adoption agreements and or putative fathers, the place for that is the legislature and can only apply to future cases. We do not apply new laws to past actions, as the Kramers seem intent on doing, to no helpful end.

  5. I am saddened to hear about the loss of Zeff Weiss. He was an outstanding member of the Indianapolis legal community. My thoughts are with his family.

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